REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK | |||
JUDGMENT | |||
Case number: HC-MD-CIV-ACT-DEL-2023/01069 | |||
In the matter between: | |||
YVONNE POLLMANN | 1st PLAINTIFF | ||
RODNEY GAZZA POLLMANN | 2nd PLAINTIFF | ||
and | |||
THE MINISTER OF HEALTH AND SOCIAL SERVICES | 1st DEFENDANT | ||
DR. BITI | 2nd DEFENDANT | ||
DR. FELIX MUTOMBO | 3rd DEFENDANT | ||
Neutral citation: | Pollmann v The Minister of Health and Social Services (HC-MD-CIV-ACT-DEL-2023/01069) [2025] NAHCMD 23 (31 January 2025) | ||
Coram: | DE JAGER J | ||
Heard: | 5 September and 4 December 2024 | ||
Delivered: | 31 January 2025 | ||
Flynote: Delict – Action for pain and suffering following stillbirth due to medical negligence – Conduct – Negligence coupled with concurrent breach of contract – Causation (factual and legal) – Damages – Emotional shock and trauma, inconvenience and discomfort – Award separated between spouses married in community of property – Spouses’ personal rights and not rights of joint estate.
Summary: The matter comes before court after the plaintiffs had it set down for default judgment following the court striking the pleas (insofar as they were before court) and defence and ordering that the matter proceed unopposed. The plaintiffs, a couple married to each other in community of property, claim N$1,2 million against the defendants (The Minister of Health and Social Services, Dr Biti and Dr Mutombo, respectively) following the stillbirth of their baby girl. The plaintiffs’ claim is based on the delictual action for pain and suffering (for emotional shock and trauma, loss of amenities of life, inconvenience and discomfort) coupled with a concurrent contractual action and vicarious liability for the first defendant. The court heard evidence on affidavit, and oral argument.
Held that, the plaintiffs proved the following conduct on the defendants’ behalf. The plaintiffs’ pleas for an emergency caesarian section were ignored. The first plaintiff was made to wait for several hours before a caesarian section was performed. The unborn child was not continuously monitored. No sonar was performed. No blood tests were performed. The first plaintiff was administered Cytotec at 11h20 on 7 March 2022 to induce labour, followed by additional oral doses six hours thereafter, every two hours. There were no labour induction observations regarding frequency and duration of contractions. The initial diagnosis of foetal distress with the release of meconium-stained fluid was made at 21h36 on 7 March 2022. The caesarian section was performed at 23h15 on 7 March 2022.
Held that, based on the evidence, examining Dr Wicomb’s opinions and analysing her reasoning, which was logical, the second and third defendants and the first defendant’s employees, who acted in the course and scope of their employment with the first defendant, were negligent in several ways. In the context of the ensuing chain of events and the resultant stillbirth, it was negligent to ignore the plaintiffs’ calls for an emergency caesarian section and to make her wait for several hours before a caesarian section was performed. They failed to recognise the first plaintiff’s pregnancy was high-risk. They failed to monitor the first plaintiff and the unborn baby. They failed to perform a sonar. They administered excessive Cytotec and then failed to monitor the first plaintiff and the unborn child. Meconium, a sign of foetal hypoxia and distress, appeared at 20h25 on 7 March 2022, making extensive foetal monitoring mandatory, which they failed to do. Even though the initial diagnosis of foetal distress with the release of meconium-stained fluid was made at 20h25 and the decision to deliver was made at 21h36, the caesarian section was only performed at 23h15. They failed to perform an emergency caesarian section when required. They failed to timely examine the first plaintiff and administer due care from the initial diagnosis of foetal distress. The terms of the agreement were breached in that the caesarian section was performed too late and in contrast to the first plaintiff’s prevailing conditions and circumstances.
Held that, based on Dr Wicomb’s opinion that uterine tachysystole ensued from the Cytotec administration, which resulted in foetal hypoxia, foetal acidosis and foetal demise, the plaintiffs proved factual causation as the wrongful conduct was probably a cause of the loss, and regarding legal causation, the above wrongful acts are linked sufficiently close or directly to the loss.
Held that, the action for pain and suffering includes all pain, discomfort, and physical and mental suffering, including the first plaintiff’s physical and mental pain and suffering and discomfort caused by bodily injury and emotional shock, and the second plaintiff’s mental pain and suffering. The plaintiffs’ claims for emotional shock and trauma, inconvenience and discomfort are considered as one claim for pain and suffering.
Held that, there can be no doubt that the first plaintiff suffered more physical pain than she had to, and both plaintiffs suffered mental pain due to the stillbirth, their pleas for help being ignored, the poor care they received and the anger and disappointment they experienced through their feelings of helplessness and powerlessness.
Held that, having considered applicable legal principles and the comparable case provided, and in exercising its discretion reasonably on the relevant facts, N$700 000 is fair and reasonable for the first plaintiff’s pain and suffering (for emotional shock and trauma, inconvenience and discomfort) and N$500 000 for the second plaintiff’s pain and suffering (for emotional shock and trauma). Even though the plaintiffs are married to each other in community of property, separate awards are made as their claim is for their respective personal pain and suffering, being personal rights as opposed to rights of the joint estate.
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ORDER
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The first defendant must pay the first plaintiff N$700 000.
The first defendant must pay the second plaintiff N$500 000.
The first defendant must pay the plaintiffs interest on the amounts in paragraphs 1 and 2 above at the rate of 20 per cent per annum from the date of judgment to the date of full and final payment.
The first defendant must pay the plaintiffs’ costs.
The matter is finalised and removed from the roll.
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JUDGMENT
_______________________________________________________________
DE JAGER J:
Introduction
The plaintiffs, Yvonne Pollmann and Jacques Rodney Gazza Pollman, a couple married to each other in community of property, instituted claims totalling N$4 million against the defendants (The Minister of Health and Social Services, Dr Biti and Dr Felix Mutombo, respectively) following the stillbirth of their baby girl. They claimed N$1 million for emotional shock and trauma, N$1 million for inconvenience and discomfort, N$1 million for loss of amenities of life and N$1 million for future medical expenses for psychological counselling to deal with the death. During oral argument, their claims were reduced to N$1,2 million (N$1 million for emotional shock and trauma and N$200 000 for loss of amenities of life, inconvenience and discomfort).
When the defendants’ condonation application for non-compliance with court orders to deliver their amended plea and condonation application and their application for upliftment of the operative bar was dismissed, and their previous pleas (insofar as they were before court) and defence were struck out, the court ordered that the matter proceed unopposed.1 The plaintiffs proceeded to set the matter down for default judgment. The court heard evidence on affidavit and oral argument.
The plaintiffs’ claim is based on the action for pain and suffering coupled with a contractual action. The actions concur as the alleged breach resulted in wrongful and culpable infringement of the plaintiffs’ physical-mental integrity.2 The relevant details of the claim, as pleaded, are as follows:
On 6 March 2022 at Otjiwarongo, before her admittance to Otjiwarongo State Hospital’s maternity ward at about 18h00 with persistent excruciating and severe abdominal pain and backache, the first plaintiff, acting in person, concluded an oral agreement with the defendants. The first defendant was represented by the second defendant, alternatively, the third defendant, in the further alternative, by his duly authorised employee whose identity is unknown to the plaintiffs. The terms of the agreement were as follows. The first plaintiff would be admitted to the hospital’s maternity ward for close observation of her pregnancy and the well-being of the unborn child. The pregnancy’s status and the first plaintiff’s health would be monitored. The defendants would act with the professional skill and due diligence required in the first plaintiff’s circumstances. The defendants would execute their duties without negligence. The defendants would take all reasonable steps to safeguard the first plaintiff and the unborn child and prevent any injuries, pain and suffering, complication, loss or damage to them. The defendants would ensure the admission is geared towards ensuring their life, health, or physical well-being would not be endangered in any manner.
The conduct complained of is as follows. The abdominal pains and backache persisted from admission until the first plaintiff was operated on at 01h15 on 8 March 2022.3 The first plaintiff was made to wait for 12 hours before a caesarian section was performed on her. The unborn child was not continuously monitored. No sonar was performed. The plaintiffs’ pleas for an emergency caesarian section were ignored. No blood tests were performed. Excessive doses of Cytotec were administered to the first plaintiff. Opportunities were missed for performing a caesarian section. Meconium was released. There were no labour induction observations regarding frequency and duration of contractions. Nothing was done until 01h15 on 8 March 2022, when the caesarian section was performed, and the birth was registered as a fresh stillbirth. There was a prolonged period from the initial diagnosis of foetal distress with meconium-stained fluid to the delivery of a stillborn baby. No resuscitation was performed on the baby at birth. The first plaintiff experienced severe and prolonged pain, excretion of blood and unknown fluids, bodily discomforts and severe pain and suffering.
The agreement was breached because the caesarian section was performed too late in contrast to the first plaintiff’s prevailing conditions and circumstances.
The damage was caused by the negligence of the second and third defendants and the first defendant’s employees in the following ways. They failed to perform the caesarian section within two hours or as required from when Cytotec was administered. The caesarian section was performed too late. They acted without due and proper care and diligence. They failed to take reasonable steps to safeguard and ensure the birth would not sustain complications and/or bodily damages or injuries. They failed to act with reasonable professional skill. They failed to resuscitate the baby.
The second and third defendants and the first defendant’s employees acted in the course and scope of their employment with the first defendant.
The evidence
The first plaintiff’s evidence on affidavit was as follows.
She was admitted to Otjiwarongo State Hospital’s maternity ward on Sunday, 6 March 2022, with excruciating and severe abdominal pains and backache that lasted from around 18h00 when she was admitted until she was operated on at 01h15 on 8 March 2022.
She was made to wait for 12 hours before a caesarian section was performed, notwithstanding the pain and backache. The baby was not continuously monitored. She was not stopped from eating and drinking. No sonar was performed since her admission. All her pleas and that of her mother and husband for an emergency caesarian section were ignored by the first defendant’s employee nurses, midwives and doctors. No blood tests were performed upon admission. The first defendant’s employees administered excessive doses of Cytotec orally and vaginally at 17h20 on 7 March 2022, which would have accelerated the labour and contractions within two hours, failing which an emergency caesarian section would have been performed. Opportunities were missed when she had severe and excruciating abdominal pain and backache, which was enough to require a caesarian section. Her excruciating pain and backache led to the unborn child releasing meconium. No induction of labour observations regarding frequency and duration of contractions were monitored. Nothing was done until 01h15 on 8 March 2022, when the caesarian section was performed, and the birth was registered as a fresh stillbirth. There was a long period from the initial diagnosis of foetal distress with meconium-stained fluid to the delivery of a stillborn baby. No resuscitation was performed on the baby upon birth. She experienced severe and prolonged pain, excretion of blood and unknown fluids, bodily discomforts, severe pain and suffering and the loss of a child.
The negligence of the defendants, alternatively, the first defendant’s employees, was the sole cause of the damages sustained.
The physical and emotional scars from that fateful date necessitated her seeking assistance from a clinical psychologist who treated her in July 2022. At her advanced maternal age of 38, it was her first pregnancy, and the staff ought to have known that she was classified as high-risk. The experience ‘dashed hopes’ for their family to grow. The pain and suffering have put immense tension on their marriage. Although they try to move on with life, they still carry the physical and emotional scars of losing their baby. They are very hurt by how their pleas for help were ignored. They did nothing to deserve such poor treatment.
The second plaintiff’s evidence on affidavit added the following:
He is employed as an administrative officer at the Otjiwarongo State Hospital. When the first plaintiff was admitted, he was with her mother and his sister, and they were told to leave as the first plaintiff was admitted, and there was no need for them to hang around. Around 20h30, he received a call from the first plaintiff that she was in too much pain and asked for help getting an emergency caesarian. He returned to the hospital with her mother as fast as possible. Dr Biti was on duty at casualty, and they explained the situation to him. He gave Dr Biti consent to continue with the surgery if the first plaintiff was not in a state to consent to surgery. He begged Dr Biti 16 times, but he was ignored. He continued to beg anyone who would listen. He took the first plaintiff’s mother home, and on his return to the hospital, he saw an instruction where Dr Biti booked the first plaintiff for a sonar on 7 March 2022 in the normal course and not as an emergency. When he spoke to the first plaintiff, she informed him she was still not examined by any doctor.
On 7 March 2022, they failed to take the first plaintiff for a sonar. The instruction to administer Cytotec was from Dr Mutombo. After administration, nothing happened in the two-hour waiting period. Around 19h00 and while in extreme pain, the first plaintiff again asked for a caesarian section. They pleaded with anyone willing to listen. There was a cleaner on duty that evening, Mr Vaino, and he even started interceding for them when their cries for help were ignored. The staff kept telling them to be patient as it was her first child, and she was not used to experiencing labour pains. All her complaints were played down. At 20h32, the first plaintiff released meconium, which they later came to realise was a sign that the baby was in distress, and if no action was taken, the baby might not survive. The defendants failed to treat the matter as an emergency when the meconium was released. The nurses insisted on being cold/harsh with the first plaintiff. After the meconium was released, they even made her walk to the theatre herself. By 21h36, nothing had still been done. By that time, Dr Biti was no longer on duty and referred him to Dr Mutombo, who referred the first plaintiff for a caesarian section, which was only conducted at 01h15 on 8 March 2022. It was much too late, and their baby was delivered as a fresh stillborn.
He experienced severe pain and suffering and the loss of a child. He accompanied the first plaintiff to a clinical psychologist who treated him in July 2022. As he was employed at the hospital, the incident caused a lot of anger, disappointment and feelings of helplessness. He never expected such negligent treatment from his colleagues. They were not treated with due care, and the staff failed to act with professional skill.
Dr Varnia Wicomb, a medical doctor, provided the following evidence by affidavit:
She is a registered general practitioner with a special interest in women’s health, obstetrics and gynaecology. She perused the medical records provided to her that form part of the bundle of discovered documents.
The first plaintiff was 40 weeks and three days pregnant, and her delivery due date was 4 March 2022. The first plaintiff was a high-risk patient because she was of advanced maternal age and had three previous miscarriages/abortions. Her recorded risk factors were that she had three abortions/miscarriages and she was HIV positive. High-risk pregnancies require management in specialised obstetric units. The staff failed to recognise that the first plaintiff was a high-risk pregnancy. The essential management protocol was not followed.
Vaginal examinations were done by the duty midwife and Dr Mutombo. No consent for induction of labour was signed by the first plaintiff. The vaginal Cytotec dosage given at 11h20 on 7 March 2022 to induce labour was four times the recommended higher dosage, thus excessive. The first plaintiff was noted to be in pain, but six hours after the vaginal Cytotec was administered, an additional dose of Cytotec was given orally every two hours. It can be confidently deduced that uterine tachysystole ensued, which resulted in foetal hypoxia, foetal acidosis and foetal demise.
The meconium-stained fluid is a sign of foetal hypoxia and distress. Grade III meconium was present at 21h36. That is an opaque and deep green colour of thick meconium and is regarded as posing a higher risk of poor neonatal outcomes. Extensive foetal monitoring was mandatory with meconium-stained amniotic fluid, and there was no evidence of any foetal monitoring.
The decision-to-delivery interval for an emergency caesarian section should be within 30 minutes. In the first plaintiff’s case, the period was one hour and 39 minutes, and it was two hours and 50 minutes after the first sign of foetal distress was noticed with the spontaneous rupturing of amniotic fluid. The intensity and duration of contractions were not assessed, and no induction of labour observations regarding frequency and duration were monitored. There is a prolonged period from the initial diagnosis of foetal distress with meconium-stained fluid at 20h25 to when Dr Mutombo examined the first plaintiff at 21h36 to delivery of a stillborn female baby at 23h15, almost three hours after the first sign of foetal distress was recorded.
The intra-uterine foetal death of baby Pollmann is a medical tragedy. Poor obstetric decisions were made from the antenatal booking up to the induction of labour and timing of the emergency caesarian section delivery. Basic obstetric management protocols were not adhered to. That is unacceptable even in low-resource settings like Otjiwarongo State Hospital.
The evidence by affidavit of Dionne Beukes, a registered clinical psychologist since 2003, is as follows:
She saw the plaintiffs in April and May 2022.
The second plaintiff was an employee at the hospital. He trusted the medical professionals would assist in his emergency. His trauma stems from him begging the duty nurses and doctors to give the first plaintiff an emergency caesarian section due to the immense pain she was suffering.
The first plaintiff thought she would never be able to have children. When she fell pregnant at age 38, all her hope was on that baby. The anguish and pain she went through in the days she had to wait and then give birth to a stillborn baby traumatised her. The first plaintiff carries physical and emotional scars. It was her first baby at age 38. Her chances of a next pregnancy are reduced by the year. The first plaintiff required therapy dealing with the aftermath of her immense loss.
The plaintiffs feel no one heard their pleas for help, and they were not assisted timely. They believe if they had been assisted earlier, their baby would have been alive. Their feeling of helplessness, disappointment and powerlessness, which leads to anger, is rather high.
Determination
The first plaintiff’s admission to the hospital was, as of course, accompanied by agreement to provide her and her unborn baby with reasonable professional skill and care.
The conduct/omissions
The court finds the plaintiffs proved the following conduct on the defendants’ behalf. The plaintiffs’ pleas for an emergency caesarian section were ignored. The first plaintiff was made to wait for several hours before a caesarian section was performed. The unborn child was not continuously monitored. No sonar was performed. No blood tests were performed. The first plaintiff was administered Cytotec at 11h20 on 7 March 2022 to induce labour, followed by additional oral doses six hours thereafter, every two hours. There were no labour induction observations regarding frequency and duration of contractions. The initial diagnosis of foetal distress with the release of meconium-stained fluid was made at 21h36 on 7 March 2022. The caesarian section was performed at 23h15 on 7 March 2022. The court accepts the time of 23h15 in Dr Wicomb’s affidavit above 01h15 referred to in the plaintiffs’ affidavits as Dr Wicomb’s evidence was provided with reference to the medical records.
Negligence and breach of contract
The next question is whether the agreement was breached and whether the conduct was negligent.4
It is not expected of a medical practitioner to bring to bear upon a case the highest possible degree of professional skill. He must employ reasonable skill and care. If not, he is liable for the consequences.5
The plaintiffs pleaded for an emergency caesarian section, but they were ignored. While that would not constitute negligence in itself, taken in the context of the ensuing chain of events and the resultant stillbirth, it was negligent to ignore their pleas. For the same reason, it was negligent to make the first plaintiff wait for several hours before a caesarian section was performed in circumstances where it was required as an emergency.
The first plaintiff’s pregnancy was high-risk. That should have been recognised. It was not. The unborn child was not continuously monitored, and no sonar was performed. That, too, was negligent in the circumstances at hand.
Logically, labour induction observations were required after the administration of Cytotec at 11h20 on 7 March 2022. That was not done. The situation is exacerbated by the fact that the vaginal dosage was four times the recommended higher dosage, thus excessive, and after six hours, an additional dose was given orally every two hours, all without the required observations or monitoring. It was negligent to administer excessive doses and not monitor the mother and baby.
The negligent conduct continued when meconium, a sign of foetal hypoxia and distress posing a higher risk of poor neonatal outcomes, appeared at 20h25 on 7 March 2022, making extensive foetal monitoring mandatory, there being no evidence that it was done.
The initial diagnosis of foetal distress with the release of meconium-stained fluid was made at 20h25, and the decision to deliver was made at 21h36. Yet, the caesarian section was only performed at 23h15. According to Dr Wicomb’s evidence, the caesarian section had to be performed within 30 minutes after the decision to deliver. The caesarian section was done one hour and 39 minutes after the decision to deliver, thus too late. The situation is exacerbated by the fact that it was done two hours and 50 minutes after the initial diagnosis of foetal distress. It was negligent to perform the caesarian section too late. It was also negligent that the decision to deliver was not made when foetal distress had set in.
The court is not dealing with conflicting views. As the matter comes before it on default judgment, the court only has the plaintiffs’ case before it. Dr Wicomb, also a general practitioner, is well-versed in informing the court about the care expected of a general practitioner. Based on the evidence, examining Dr Wicomb’s opinions and analysing her reasoning, which was logical, the court finds that the second and third defendants and the first defendant’s employees were negligent in several ways. They ignored the plaintiffs’ calls for an emergency caesarian section. They failed to monitor the first plaintiff and the unborn baby. They administered excessive Cytotec and failed to monitor the situation. They failed to perform an emergency caesarian section when required. They failed to timely examine the first plaintiff and administer due care from the initial diagnosis of foetal distress. The terms of the agreement were breached in that the caesarian section was performed too late and in contrast to the first plaintiff’s prevailing conditions and circumstances.
The second and third defendants and the first defendant’s employees acted in the course and scope of their employment with the first defendant, who is liable for their wrongful conduct based on vicarious liability.
Causation
Did the wrongful conduct cause the plaintiffs’ suffering?
For liability to ensue, the wrongful conduct must have been a cause of their loss and pain (factual causation), and it must be linked sufficiently close or directly to the loss. Factual causation is a factual enquiry that applies the ‘but-for’ test. Legal causation is a juridical problem wherein policy consideration may play a part.6
The case facts are similar to those in C P v MEC Health of the Provincial Government of the Free State (even though the basis of that case was a breach of a duty of care, which is not the basis of the plaintiffs’ case), insofar as it concerned the administration of Cytotec coupled with failures to monitor and pay attention to the possibility of foetal distress and to perform an emergency caesarean section.7 The full bench of the High Court of South Africa, Free State Division, Bloemfontein, said a plaintiff is not required to establish a causal link with certainty, but only to establish that the wrongful conduct was probably a cause of the loss.8
The court accepts Dr Wicomb’s opinion that uterine tachysystole ensued from the Cytotec administration, which resulted in foetal hypoxia, foetal acidosis and foetal demise. The court is satisfied that the plaintiffs proved factual causation as the wrongful conduct was probably a cause of the loss. Regarding legal causation, the above wrongful acts are linked sufficiently close or directly to the loss.
Damages
The next issue is the plaintiffs’ damages.
The action is one for pain and suffering. The action for pain and suffering includes all pain, discomfort, and physical and mental suffering. It includes the first plaintiff’s physical and mental pain and suffering and discomfort caused by bodily injury and emotional shock, and it includes the second plaintiff’s mental pain and suffering. Emotional shock is usually associated with pain and suffering unless it causes further forms of loss irrelevant to the matter at hand. The court includes emotional shock under the pain and suffering claim.9
There can be no doubt that the first plaintiff suffered more physical pain than she had to. There can also be no doubt that both plaintiffs suffered mental pain due to the stillbirth, their pleas for help being ignored, the poor care they received and the anger and disappointment they experienced through their feelings of helplessness and powerlessness.
The court now considers the quantum.
The quantum of compensation must bear relation to the extent of the loss suffered. The extent is expressed in the intensity of an injury to feelings, its nature and duration. A court considers objectively ascertainable factors like age, gender, social status, culture and lifestyle. Damage is incapable of being directly expressed in money, the link is found in fairness. It must be fair to both sides. The law’s sympathy with an injured plaintiff should be taken backstage in making an award. On the other hand, an award must not be so conservative that a defendant receives preferential treatment at a plaintiff’s expense. The subjective experience of the plaintiff, established through evidence by the nature, duration and intensity of the pain and suffering, is of paramount importance while previous awards are considered. Actual experience is decisive. A plaintiff’s level of sensitivity is not considered.10
Exercising reasonable discretion and broad general considerations is decisive in quantifying non-patrimonial damage. An award must be based on the case facts, and the plaintiff must adduce sufficient facts to reasonably enable the court to make an appropriate and fair estimate.11
Awards in previous comparable cases should be considered. However, that process does not require a meticulous examination of those awards, nor must it be allowed to dominate the enquiry to become a fetter on the court’s discretion. They should be used to afford general guidance to arrive at an award not substantially out of general accord with previous awards in broadly similar cases.12 If previous awards are considered, the need for even-handedness requires regard to its present monetary value (the purchasing power of the currency).13
The court is not faced with an easy task. The compensation award must have a purpose. The plaintiffs’ ordeal, which ended in the loss of their baby girl, cannot be measured in a monetary compensation award. No monetary compensation award could measure up to their loss. A monetary award cannot counterbalance their happiness or overcome the effects of their suffering. What, then, is the purpose of the award? The plaintiffs stated they want to ensure that no other public members experience such a loss. Compensation awards are not penal, and the award made herein is not. It may or may not lead the first defendant to act to prevent such future cases. If that happens, the plaintiffs’ purpose would be served. From the court’s side, the award would provide the plaintiffs with sufficient psychological satisfaction for the injustice done to them.
In Lopez v Minister of Health and Social Services (Lopez)14 the court awarded N$300 000 in 2019 for emotional shock and trauma and N$200 000 for inconvenience and discomfort. The plaintiff’s claim arose from the death of her daughter, who passed away four days after giving birth, and the death of her granddaughter, who passed away one day after birth. Lopez was the only remotely comparable case provided on the plaintiffs’ behalf.
With all those principles in mind, the court turns to the facts.
The abdominal pains and backache persisted from admission on 6 March 2022 around 18h00 until the first plaintiff was operated on at 23h15 on 7 March 2022. That is a total of about 29 hours of persistent, excruciating and severe pain and bodily discomfort. If action had been taken much earlier upon admission, the first plaintiff would not have endured pain for such a prolonged period. The first plaintiff was at an advanced maternal age with a high-risk pregnancy. She already experienced three miscarriages/abortions. She thought she would not fall pregnant again. When she did, all her hope was on that baby. That history must have contributed to the pain and suffering she experienced during the ordeal. Her disappointment must have been heightened by her history. Her chances of falling pregnant are reduced by the year. She is not young if regard is had to a woman’s prime life-bearing years. Her chances of having a baby were considerably reduced by the ordeal. The first plaintiff’s physical and mental suffering was intense.
The court appreciates the second plaintiff’s suffering when he explained that the incident caused him anger, disappointment and helplessness because he was employed at the hospital. He trusted his colleagues at the hospital. He could not help his wife and baby. As a father whose role as protector is deeply embedded in a father’s very being, the second plaintiff’s suffering was also intense.
Both plaintiffs personally experienced the traumatic incident. The second plaintiff did not expect the poor treatment from his colleagues. It ‘dashed hopes’ for their family to grow. That statement must not be underestimated. Article 14(3) of the Namibian Constitution provides the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. In this case, the State failed to protect the plaintiffs’ family.
Although the plaintiffs tried to move on with life, in May and August 2024 (when they deposed to their affidavits), more than two years after the tragedy, they still carry the physical and emotional scars of losing their baby. That period is not negligible, and their suffering is ongoing.
Losing a baby on the day the baby was supposed to be born and start life on earth at the hands of the health sector mandated to provide health and doctors who had to take the Hippocratic oath, is a traumatic event no parent should face.
The plaintiffs’ claims for emotional shock and trauma, inconvenience and discomfort are considered as one claim for pain and suffering.
Having considered applicable legal principles and the comparable case provided, the court, exercising its discretion reasonably on the relevant facts, finds that N$700 000 is fair and reasonable for the first plaintiff’s pain and suffering (for emotional shock and trauma, inconvenience and discomfort) and N$500 000 for the second plaintiff’s pain and suffering (for emotional shock and trauma). Even though the plaintiffs are married to each other in community of property, separate awards are made as their claims are for their own personal pain and suffering, being personal rights as opposed to rights of the joint estate. Applying the general rule on costs, it follows the event.
Conclusion
In conclusion, it is ordered that:
The first defendant must pay the first plaintiff N$700 000.
The first defendant must pay the second plaintiff N$500 000.
The first defendant must pay the plaintiffs interest on the amounts in paragraphs 1 and 2 above at the rate of 20 per cent per annum from the date of judgment to the date of full and final payment.
The first defendant must pay the plaintiffs’ costs.
The matter is finalised and removed from the roll.
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B DE JAGER |
Judge |
APPEARANCES | |
PLAINTIFFS: | T Harases Of Tjitja Harases Legal Practitioners, Windhoek |
1 Pollmann v The Minister of Health and Social Services (HC-MD-CIV-ACT-DEL-2023/01069) [2024] NAHCMD 216 (8 May 2024).
2 Neethling, Potgieter and Visser Law of Delict 4 ed at 264.
3 The court ultimately found that the caesarian section was performed at 23h15 on 7 March 2022, not 01h15 on 8 March 2022.
4 The plaintiffs’ case is based on negligence and concurrent breach of contract, not duty of care.
5 Mitchell v Dixon 1914 AD 519 at 525.
6 International Shipping (Pty) Ltd v Bentley 1990 1 SA 680 (A) at 701.
7 C P v MEC Health of the Provincial Government of the Free State Case Number (A53/2019) [2020] ZAFSHC 216 (8 October 2020) para 15.
8 The court referred to Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 449E.
9 PJ Visser, JM Potgieter, LS Steynberg and TB Floyed Visser and Potgieter’s Law of Damages 2ed (Law of Damages) at 99 to 100 and 443.
10 Law of Damages at 443 to 444.
11 Law of Damages at 491.
12 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at 535 to 536.
13 SA Eagle Ins Co Ltd v Hartley 1990 (4) SA 833 (A) at 841.
14 Lopez v Minister of Health and Social Services 2019 (4) NR 972 (HC).
Cited documents 1
Judgment 1
| 1. | Pollmann and Another v Minister of Health and Social Services and Others (HC-MD-CIV-ACT-DEL-2023/01069) [2024] NAHCMD 216 (8 May 2024) | 1 citation |