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Case No 414/86 mp
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
THE ADMINISTRATOR GENERAL FOR
SOUTH-WEST AFRICA Appellanr No. 1
SERGEANT DAMASEB Appellanr
No. 2
ALEXANDER DU TOIT' Appellant No. 3
and
GERHARD KRIEL Respondent
CORAM: HOEXTER, VAN HEERDEN et STEYN, JJA
HEARD: 7 March 1988 DELIVERED: 24 March 1988
JUDGMENT
HOEXTER, JA
2.
HOEXTER, JA,
On 2 March 1984, and at Kombat, SWA, two members of the SWA Police Force fired shots in an attempt to arrest a robber. Oné bullet ricocheted and struck Marie Kriel ("Marie") in the head. Marie was then eight years old and a pre-primary pupil in sub-B. She was a normal healthy child,fond of sport, and an average scholar. Her intelligence was such that in the normal course of events she would have matriculated.
The gunshot wound caused grave injury to Marie's brain and paralysed her body; but it left her mental faculties unimpaired. After the accident Marie received medical and surgical treatment at hospitals in Grootfontein and Windhoek whereafter she spent several months in the Red Cross Hospital for Children at Cape Town. Since July 1985 she has been a pupil at the Elizabeth Conradie School at Kimberley.
Alleging
3.
Alleging that the shot in question had been negligently fired Marie's father ("the plaintiff") instituted an action for damages in his personal capacity and in his capacity as Marie's father and natural guardian against the three appellants jointly and severally. The matter came to trial before HENDLER, AJ in the Supreme Court of SWA on 10 June 1986. At the trial the appellants admitted liability and the sole issue was the guantum of damages to be awarded.
At the conclusion of the trial judgment was reserved. On 29 August 1986 HENDLER, AJ gave judgment with costs for plaintiff in various amounts which are set forth below and which total R 836 631,96.
In respect of the period from the date of the accident to the date whereon Marie will attain her majority, the Court below -
(A)
4.
(A) awarded the plaintiff in his personal
capacity
(1) as past expenses, ihcluding medical
expenses, the sum of R36
797,96;
(2) in respect of future cars, including
medical and
para-medical axpenses
calculated from 10 June 1986, the
sum
of R183 817,00.(My uncerlining)
The Court below further -
(B) awarded the plaintiff in his capacity as
the father and natural
guardian of Marie
(1) as general damages the sum of
R150 000,00;
(2) in respect of loss of income the
sum of R152 553,00;
(3) in respect of future (i e the period
subsequent to Marie's
majority)
medical and para-medical costs, the sum of R313 464,00. (My underlining)
By agreement between the parties the amounts awarded were to be paid to a
trust fund about to be formed and subject to the approval
of the trial
Judge.
with leave of the trial Court the appellants appeal against the
quantum of the damages awarded by the Court a quo. Their sole
complaint is in regard to item (B)(l) above - the amount of R150 000,00
áwarded as general
damages
5. damages. It is urged on behalf of the appellants that in the
process of determining item (B)(l) the trial Court misdirected itself.
Accordingly this Court is invited to make its own assessment of a figure fairly
representing the general damages in this case and
to substitute the latter for
the amount of R150 000,00 at which the trial Court arrived.
Upon what part of the learned Judge's reasoning the appellants rest their contention of a misdirection will be indicated in due course. In order to prepare the ground for a proper consideration of the appellants' complaint it is necessary first to describe the nature of the injury inflicted upon Marie by the gunshot wound to her head and the nature and extent of her permanent incapacity consequent thereon; and second to particularise the'computation of medical and para-medical costs underlying items (A)(2) and (B)(3) in the trial Court's total award of damages.
In the judgment of the trial Court Marie's injury and her resultant disabilities are comprehensively
reviewed
6.
reviewed. For purposes of the present judgment the position may be summarised as follows:-
(1)" The gunshot wound caused a depressed fracture of the
skull and serious brain damage. Marie remained uncon= scious for some weeks after the injury but upon regaining consciousness (and after a spell of amnesia) she reco= vered the faculties of speech and memory. Her intelligence is normal.
(2) Although her life expectancy has been reduced,a prognosis
made in
March 1985 indicated that Marie would live for
at least a further 44 years, i e to the age of 53 years.
(3) There is a risk of almost 50% that Marie may develop
post-traumatic
epilepsy.
(4) The brain damage has resulted in partial paralysis of
Marie's arms and legs. Such residual movement of which her limbs are still capable is functionally insignificant. She is incapable of doing anything for herself.
(5) Marie
7
(5) Marie has become severely spastic. She has already
undergone a
bone-marrow operation to allêviate' her
spasticity.
(6) Marie suffers pain daily and she will continue to do so
for the rest
of her life.
(7) Although Marie has sensation in all four limbs she has
(subject to
what has been said in (4) above) no
functional movement below her neck. She
is able to
control her neck muscles sufficiently to enable her to
use a headstick attached to a specially moulded helmet
which fits over her head; but this exercise imposes a
strain on the neck muscles. and causes her pain.
(8) The brain damage has resulted in partial incontinence of
the
bladder.
(9) Marie cannot stand or sit unsupported. Left unsupported
she falls
over. She is confined to a wheel-chair with
her shoulders strapped to keep
her in an upright position.
She is unable to operate a self-propelled
wheel-chair.
With
8.
With the aid of a headstick, however, she will be able to operate a motorised wheel-chair.
(10) Marie cannot feed herself. With assistance and support
she may eventually be able to use her left hand to
feed herself; but in order to do so she will require
a limb-balancer.
(11) Marie is unable to maintain her balance
when seated
on a conventional toilet-seat. She cannot bath or
even wash
herself. She cannot dress and undress
unaided. In bed at night she cannot, unassisted, turn
from side to side.
(12) Marie is the most severely disabled pupil at
the
Elizabeth Conradie School. Despite her average intel=
ligence her school
progress has been retarded by her
disability. However, she will probably
reach standard
8. She will remain at the Elizabeth Conradie School
until
she turns 21. At the school she requires a
full-time live-in attendant to
look after her.
(13) In
9.
(13) In order to complete her schooling Marie will require
a sophisticated computer equipped with remote control
switches. The helmet and headstick already mentioned will enable her to type on a computer key-board; and to write and to paint. She will require special tape-recorders.
(14) Once she has completed her schooling
institutional care
will be neither necessary nor advisable for
Marie.
Given suitable accommodation, architecturally adapted
to her particular needs, and if she is provided with
the necessary motor transport (also with suitable
structural modifications) and personal attendants, Marie
and will be able, she may prefer, to live on her own or in
some sort of commune. Whether she chooses to live on
her own or with her family or in a commune, she will
for the rest of her life require two full-time personal
attendants.
To
10.
To sum up: Marie has survived catastrophic bodily injury with her mind intact. while she has the intelligence and while she experiences the emotions and feelings of any ordinary healthy girl. of her age, she is now - and for the rest of her days she will remain— imprisoned in an inert and helpless body.
I turn next to the trial Court's computation of the medical and para-medical costs. The first witness called on behalf of the plaintiff was a Mrs Margaret Thompson. She is a very experienced occupational therapist and an expert in the field of para-medical aids and equipment designed to enable disabled persons to become as independent as possible. On 6 June 1986 Mrs Thompson spent 6 /2 hours at the Elizabeth Conradie School where she observed and interviewed Marie and discussed the latter with members of the school staff. On 7 June 1986 Mrs Thompson compiled a very comprehensive typewritten report setting forth her
assessment
11.
assessment of Marie's needs in regard to medication, equipment, personal
attendants, transport and accommodation. In the witness stand
Mrs Thompson gave
lengthy and detailed evidence in support of her report. Subject to a criticism
that her estimates of the durability
of some of the para-medical aids
recommended by her were perhaps "a bit too pessimistic" the learned Judge found
Mrs Thompson to
be an excellent witness who had "an outstanding knowledge of the
needs and requirements of a paraplegic". I should add that the testimony
of Mrs
Thompson was supported by two other witnesses who are members of the staff of
the Elizabeth Conradie School. These were respectively
a
State
medical-officer responsible for the medical welfare
of the pupils and a
physio-therapist who is a graduate in science.
Here it is necessary to quote at some length from that portion of the trial Court's judgment in which
its
12.
its award in respect of future medical expenses (items
(A)(2) and (B)(3) aforementioned) are particularised:-
"Up until the Over the
age of 21 age.of 21
1. MEDICATION
For the tablets which Marie
has to take for the rest of
her life an amount of R37 543,00 R63 062,00
is awarded.
1. TOILET AIDS
(a) Bladder
Pads and diapers are neces=
sary to assist with bladder
incontinence, for this a
tranquillity system is
required and I award the
amount of R37 010,00 R62 167,00
(b) Bowel
To enable Marie to use the toilet in a conventional manner instead of lying on a bedpan, a Gil chair is
necessary and at a later
stage she will require a
commode-shower chair with
padded toilet, and
for
these items I award the
amount of R 1 908,00 R 1 010,00
3. BATH AND BATHROOM
13.
Up until the Over the
age of 21 age of 21
3. BATH AND BATHROOM
(a) Marie requires to be
supported in the sitting
position using a
specially
designed bath support cushion
known as the Burnett
bath-
seat. She also requires a
hoist and the recommended
one is a
Mangar bath-hoist.
For these items I award the
amount of R 6 620,00 R 2 425,00
(b) This is for a Spartan
examination couch to make
dressing and
undressing
possible in the bathroom
and also for a Parker bath
which
will be required
when she eventually has a
permanent home. Here I
award the amount of R 552,00 R 1 952,00
4. ATTENDANTS
I am satisfied that it
would be fair to award the
costs of 1 attendant
only
up until Marie reaches the
age of 21, when she leaves
the
Elizabeth Conradie
school, but thereafter I am
satisfied that she
will
require an additidnal atten=
dant who is also able to
double-up as
a driver. To
this end I award the amount
of R28 594,00 R134 481,00
5. TRAVELLING
14.
Up until the Over the
age of 21 age of 21
5. TRAVELLING ALLOWANCES
I am satisfied that Marie
should be allowed the
travelling allowance from
school to her home up until
the age of 21 together with
the costs of the attendant
that will travel withher.
Here the award is in the
amount of R32 940,00
6. SCHOOL FEES
The amount awarded here is R 5 833,00
7. COMMUNICATION
(i) Head Sticks
The aids here form the
most vital part of
Marie's life and for the
head sticks and helmets
which she will require I
award the amount of R 9 886,00 Rl5 321,00 (ii) Remote control swítches
which are an absolute
necessity I award the
amount of R 1 980,00 R 1 128,00 (iii) Tape recorder
This being Marie's main
means of communication,
a special type is re=
quired, and for this I
allow R 4 974,00 R 4 858,00
(iv) Intercom and Telephone
These items are also
essential for Marie's
wellbeing and I award R 1 980,00 R 180,00
8. BED
15.
Up until the Over the
age of 21 agê of 21
8. BED AND MATTRESS
Marie requires a special
type and for this I allow
the amount of R 4 076,00 R 2 442,00
9. WHEELCHAIRS AND SUPPORTS
These are obviously essen=
tial
items for Marie's
wellbeing and I award the
amount of R24 759,00 R28 950,00
10. ELECTRIC TILT TABLE
AND ARM BALANCER
These items are once again
absolutely necessary as it
is essential that
Marie stands
daily as part of the therapy
and the arm balancer is
re=
quired to attempt to get
some useful movement in her
left arm. A
special support
cushion is also required for
standing. The
amount
awarded here is R20 367,00 R23 222,00
11. TRANSPORT
For the special transport
Marie will require, I
award the amount of - R20 527,00
12. PHYSIOTHERAPY
This Marie will require for
the rest of her life and
for this I award the amount
of - R21 580,00
COMPUTER
16.
Up until the Over the
age of 21 age of 21
13. COMPUTER
The final item is a computer which is probably one of the 'most important aids for the rest of Marie's life and for this I award the amount of R26 067,00 R34 647,00
R 245 089,00 R 417 952,00
The way has now been cleared for an examination of the appellants' complaint that the trial Court misdirected itself in regard to the award of general damages. The portion of the trial Court's judgment quoted above was prefaced by certain observations by the learned Judge which I quote hereunder:-
"On consideration of all the factors, I am satisfied that the following para-medical aids were shown on a balance of probability to be necessary for Marie to lead any type of reasonable existence at all, and in no way would provide her with an utopian situation. Itmust be borne in mind that Marie is not a vegetable, she has a mind which comprehends everything and is able to communicate freely with her fellow-scholars and a substantiai
sum
17.
sum is necessary in an attempt to ameliorate her tragic position.
I consider that the aids recommended as essential by Mrs Thompson should be con= sidered as future medical expenses and thac
the amounts awarded for these aids should not be deducted or play any meaningful roie when deciding upon the amount of general damages to award which requires entirely different
considerations.
I make the following awards for furure medical expenses bëing essential medication and para-medical expenses being the aids which I find on the balance of probabilities were necessary." (My underlining)
Mr Scott (who, with Mr Avenant, appeared for the
appellants) submitted that the sentence underlineó in the above-quoted remarks by the learned Judge constituted a material misdirection. As pointed out by this Court in Southern Insurance Association v Bailey NO 1984(1) SA 98 (A) at 113 E/F, where (as here) damages for bodily injuries are awarded not in a globular amount but under separate heads, a trial Court should guard against the danger of duplication as a result of an overlapping between separate awards. Counsel for the appellants contended that in seeking zo
determine
18. determine the quantum of general damages by excluding from
consideration the amounts awarded under items (A)(2) and (B)(3) to cover the
cost of the para-medical
aids thereunder specified, the trial Court's total
award had resulted in a duplication of damages. Most of these para-medical aids,
so it was urged, were of a nature calculated to ameliorate Marie's loss of the
amenities of life - a factor looming large in the
trial Court's award of R150
000,00 for general damages; and in consequence, so the argument proceeded, there
was
overlapping between the awards under items (A)(2) and (B)(3)
on the
one hand and the award under item (B)(l) on the other. On behalf of the
respondent Mr Scholtz contended that in the instant case there had been
no duplication of damages. He forcibly argued that any possibility of
overlapping
had been eliminated for the reason that in weighing general damages
the learned Judge had visualised Marie as a patient already equipped
with and
served by the para-medical aids. Now it may well be that the Court below so
viewed the matter, but
the ..
19. the question remains in what way Marie's unhappy lot is likely to be ameliorated by the provision of the para-medical aids; and whether such amelioration does not in fact to some extent impinge upon the issue of general damages.
Counsel for the appellants relied strongly upon the reasoning reflected in a
judgment of KRIEGLZR, J delivered on 14 June 1986 inthe
Witwatersrand Local
Division in the
matter of Johannes Dhlamini v Government of RSA and
reported in Corbett & Buchanan, The Quantum of Dámages, vol
III, p 554. Following a spinal cord injury caused by a gunshot wound the
plaintiff in that case had become a paraplegic unable
to stand or walk
unassisted and he was permanently confined to a wheel-chair. KRIEGLER, J awarded
the plaintiff damages totalling
R224 000,00 and computed under ten separate
heads. In respect of loss of earnings (para 1) the sum of R74 000,00 was
awarded. In
respect of pain and suffering, loss of the amenities of life,
disability and disfigurement, (para 10) the sum of R50 000,00 was awarded.
The
balance of
R100,000.00
20.
Rl00,000.00 was made up of 8 separate awards (paras 2 - 9)
to cover
the costs of the following: a wheel-chair,
a Levo chair; tyre inserts; an
attandant; treatment
and consultations; and future medical expenses.
In
assessing general damages at the sum of R50 000,00
KRIEGLER, J remarked
(at 587):-
"If I were to have assessed the damages for the non-patrimonial elements in isolation, I would have arrived at an award considerably ih excess of the figure at which I have arrived. I have grappled with the question what, in law, logic or equity, underlies my conviction that there must be some interaction
between the awards for patrimonial loss on the one hand and the award for non-patrimonial loss, on the other. Whatever may be the
rationale in principle or in other cases, it appears to me, in this case, and on its particular facts, that I cannot ignore the very substantial awards made under paragraphs 2, 3, 5 and 6 above when I come to assess general damages for pain and suffering, loss of amenities of life, disability and dis= figurement. Those awards were considered reasonable for the very reason that they served to ease the plaintiff's painful shuffle across this mortal coil. They were intended to
reduce
21.
reduce the suffering, the loss of amenities of life and general disablemenr that the plaintiff will have to live with. I cannot ignore them when assessing those very elements under what is a different head of damage, but forms part of one and the same award.
In the result, I have assessed the damages under this head, in the sum of R50 000.00."
(I should mention that the
awards under paragraphs 2, 3, 5
and 6 here mentioned by KRIEGLER, J were for
the costs
respectively of a wheel-chair(R16 000,00); a Levo chair
(R16 000,00); an attendant (R40 000,00) and drop shields
(R7 000,00)).
It seems to me, with respect, thar KRIEGLER, J was entirely right in concluding that, on the facts of the case before him, some reciprocal relationship necessarily existed between the patrimonial and the non-patrimonial elements in the total award of damages; and that he rightly guarded against the danger of duplication by assessing general damages in the light of the fact that the sums awarded to cover the costs of some of the para-medical aids would to an
appreciable
22.
appreciable extent serve to ameliorate Dhlamini's suffering and to compensate him for the amenities of life which he had lost. In my view, furthermore, on the facts of the case before us, the awards under items (A)(2) and (3)(3) on the one hand and the award under (B)(l) on the other are likewïse interlinked and to some degree overlap. For the reasons which follow the criticism levelled by the appellants at the trial Court's approach to the matter of general damages is, in my opinion, well-founded.
Under the heading of general damaces the trial
Judge included "damages for
pain and sufferïng and loss of the amenities of life"; and in this
connection he further observed
in the course of his judgment:-
"As already stated, Marie, because of her
spasticity, wïll endure pain for the rest of her life and it is also quite clear that there are really no amenities of life left to her whatsoever besides the fact that she is able to speak and hear and communicate by using a head stick."
I deal first with the matter of pain. The sum of the
amounts
23.
amounts awarded under items (A)(2) and (B)(3) is R183 817 + R313 464 = R 497 281. Of the last-mentioned amount a little more than one-fifth, that is to say R37 543 + R63 062 = R 100 605 was awarded to cover the costs of medication. The broad purpose of medication is therapeutic and curative; and the award of R100 605 must be regarded, I think, as being calculated to reduce and alleviate, at least to some extent, the pain which will burden Marie for the rest of her life.
I consider next the matter of the loss of the amenities of life. The balance of the awards under items (A)(2) and (B)(3), that is to say R497 281 less R100 605 = R396 676 is aimed at the provision of the twelve para-medical aids already detailed in this judgment. "An appraisal of those various aids, so it seems to me, points inescapably to the conclusion that the provision of many of them are calculated to ameliorate, to some extent at least, the loss of the amenities of life suffered by Marie. That the learned Judge in the Court a quo took a different view of the matter
is
24.
is indicated not only by that portion of his judgment already quoted, and underlined by me, but further appears from the following remarks made by him in dealing with the appellants' application for leave to appeal:-
"I am also not impressed by the argument
that in calculating general damages and especially with regard to the loss of amenities of life, I should have considered the amounts awarded for the para-medical aids. The reason I say this is because none of the aids are able to restore to Marie the loss of amenities of life. None of them can replace the loss of all her limbs and what this deprives her of. The aids merely make life less intolerable."
The concept of the loss of the amenities of life has been tersely but aptly defined by LORD DEVLIN in H West & Son Ltd v Shephard (1963) 2 AER 625 (HL) at 636 G/H as -
"...a diminution in the full pleasure of living."
The amenities of life may further be described, I consider, as those satisfactions in one's everyday existence which flow from the blessings of an unclouded mind, a healthy body, and sound limbs. The amenities of life derive from such simple
but
25. but vital functions and faculties as the ability to walk and
run; the ability to sit or stand unaided; the ability to
read and write
unaided; the ability to bath, dress and
feed oneself unaided; and the ability
to exercise control
over one's bladder and bowels. Upon all such powers
individual
human self-sufficiency, happiness anddignity are
undoubtedly
highly dependent.
That none of the para-medical aids with which the case is concerned will be
able - to use the words of the
learned trial Judge - "to restore to Marie the
amenities of
life" which she has lost, must be accepted of course as a sombre
truth. It is no less important to bear in mind that no amount of
para-medical
aids can ever be a substitute for limbs which have ceased to function. But the
matter does not end there. As HENDLER,
AJ himself pointed out, the para-medical
aids would make life "less intolerable" for Marie. It seems to me that whatever
renders
the uncomfortable and deprived existence of an accident victim less
intolerable
or ......
26.
or more endurable must inevitably have the tendency to restore to the victim of an accident at least some of the pleasure in living once enjoyed by such victim; and likewise to serve as some measure of compensation for the loss of the amenities of life.
Without the para-medical aids Marie would be doomed to a wretched existence spent, to the end of her days, within the walls of an institution. She would remain helpless, comfortless, and wholly dependent upon others to satisfy her most basic bodily and intellectual needs. Since her mind is clear there must be added her anguish and frustration flowing from the realisation of her utter help= lessness. It is true that even when she has the advantage of the para-medical aids Marie's plight will still be a pitiable one; but it will no longer be a completely hopeless one. A few examples will suffice. Having her own full-time personal attendant while she remains at the Elizabeth Conradie School will make life a little more comfortable and
congenial
27.
congenial for her. Having two such personal attendants when she attains majority and leaves the school will give her greater mobility and independence. In particular it will enable her to throw off the shackles of confinement to an institution and allow her, if she so wishes, to live in a home of her own - by common consent not the least of the many pleasures of living. The aids to communication and the sophisticated computer will help Marie to become more self-sufficient and self-reliant; and so will the wheel-chairs, the electric tilt-table, and the arm-balancer. The toilet aids and the specialised bath= room and bedroom equipment will all conduce to her greater comfort and to a sense of comparative well-being.
For the reasons aforegoing I conclude that in disregarding the interrelationship between the patrimónial and non-patrimonial elements of damages in its assessment, and in treating items (A)(2) and (B)(3) on the one hand and item (S)(l) on the other as completely discrete and individually distinct components in its total award of damages, the trial
Court
28.
Court materially misdirected itself. In the present case the said components to some degree overlap and the approach of the trial Court resulted to an appreciable extent in an improper duplication of damages. Accordingly the appellants' attack upon the award of general damages as determined by the Court below succeeds and this Court is required to substitute for the trial Court's figure its own assessment of general damages.
Notwithstanding the perceptible amelioration
of her burden of pain and
suffering and of her loss of the
amenities of life which will result from the
provision of
the various para-medical aids, it is clear on all the
facts
of this pathetic case that Marie has suffered and will always
suffer
pain and discomfort; and that for her the ordinary
pleasure of living has
been grossly and cruelly diminished.
Having made due allowance for the
aforesaid amelioration the
award under the head of general damages must be a
very
substantial one. In all the circumstances of the case I
would
29.
would assess general damages for pain and suffering and for loss of the amenities of life at the figure of R110 000,00.
An adjustment of a patent error in the order of the trial Court is necessary. The trial Court's assessment of damages for loss of earnings (see item (B)(2)) was based upon a figure of R213 403,00 derived from actuarial evidence adduced. In order to provide for contingencies the learned Judge sought to reduce this figure by 25%. However, an arithmetical error crept into the trial Court's deduction : for contingencies and under the head of loss of earnings it awarded R152 533,00. It should have awarded R160 052,00.
In the result the following orders are made:-
(1) The
30.
(1) The appeal succeeds with costs, including the costs
consequent upon the employment of two counsel.
(2) The amount of general damages awarded in paragraph (B)(l) of the trial Court's order is reduced from R150 000,00 to Rll0 000,00.
(3) In order to cure a patent arithmetical error paragraph (B)(2) of the trial Court's order is corrected by substituting for the figure of R152 553,00 awarded as damages for loss of income the figure of R160 052,00.
G G HOEXTER, JA
VAN HEERDEN, JA )
STEYN, JA )Concur
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