The TN obo BN v Member of the Executive Council for Health, Eastern Cape judgment marked a major shift in South African medical negligence law by recognising two alternative remedies for awarding traditional lump‑sum damages where appropriate. The public healthcare remedy allows a health department to provide the injured person’s future medical services and supplies in kind at public facilities, to the extent it can do so at a reasonable standard. The periodic payment remedy permits the department to pay future costs in instalments or reimburse invoices over time for private services, instead of paying one upfront amount. The decision envisages these remedies working together and being tailored to the individual, based on proper evidence.
In the case discussed here, the court applied those principles and awarded a lump sum because the department led no evidence to justify either remedy. The claimant suffered a brain injury at birth in a public hospital and was subsequently diagnosed with severe cerebral palsy. Liability for negligent care had already been agreed, and the court was asked only to quantify certain future needs including loss of earnings, adapted housing, mobility costs, and full‑time caregivers. Expert nursing evidence led on behalf of the claimant showed why two caregivers were needed during the day for safe transfers and a night caregiver was required for turning, incontinence care, and epilepsy monitoring. The department called no witnesses, although most actuarial figures were common cause.
The court had to decide whether to award lump sum payments for the abovementioned damages, or to allow pay‑as‑you‑go undertakings for caregiver costs and some vehicle replacements, and whether any lump‑sum amounts could be paid in instalments because of budget constraints. It found for the claimant and ordered payment of about R12.19 million, including agreed amounts for loss of earnings, accommodation, mobility, and caregiver costs, plus trust establishment and administration at 7.5%. A limited contingency of 15% was applied only to the portion of future mobility costs tied to a potential vehicle upgrade. Further, it ordered that payment was to be made within 30 days, and that a trust would manage the funds.
The court explained that when future medical and care costs are proven at private‑sector rates, they are presumed reasonable. The presumption falls away only if the department leads cogent evidence that equivalent care will be available at the same or better standard at a lower cost and shows how any alternative remedy would work in practice for the individual. With no evidence provided by the defendant, the court was not able to give effect to the periodic payment and public healthcare remedies as outlined in the case.
Departures from the usual once‑and‑for‑all money damages rule must be properly pleaded and supported by proof of suitability and practicality for the specific claimant. The State Liability Act requires money judgments to be satisfied within 30 days unless the parties agree otherwise.