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Disclaimer: This is an unofficial translation of the judgement in Venter v Nel 1997 (4) SA 1014 (D) 1997 (4) SA p1014produced for SAFLII. The original Afrikaans text takes precedence and should be cited at all.

 

This document was compiled by SAFLII with the contribution of:

Sandra Reneke - Translation

 

Venter v Nel 1997 (4) SA 1014 (D)

1997 (4) SA p1014

 

Citation                       1997 (4) SA 1014 (D)

Court                          Durban and Coast Local Division

Judge                         Broome DJP

Heard                         November 20, 1996

Judgment                  February 21, 1997

Counsel                     B C Wanless for the plaintiff Defendant in default

 

 

Flynote : Sleutelwoorde

 

Damages — Measure of — Action for damages for infection with HIV through sexual intercourse — Damages claimed under three  F heads, past medical expenses, future medical expenses and  G general damages — Damages for past medical expenses allowed in full — In assessing damages for future medical expenses, two factors to be considered, namely plaintiff's estimated annual medical expenditure and life expectancy — In assessing general damages, plaintiff's condition calling for extremely high damages — Factors to be considered including stress, inevitable fear of the unknown, adverse effects on general and sexual relationships and psychological and social  H suffering — Plaintiff awarded R169 399 for past and future medical expenses and R175 000 for general damages.

 

Damages — Measure of — Action for damages for infection with HIV through sexual intercourse — Action undefended

— Court may in terms of Rule 31(2)(a) of Uniform Rules grant judgment against  I  defendant after hearing evidence — Enquiry not as detailed or controversial as it would be if matter defended.

 

Headnote : Kopnota

 

The plaintiff, in an undefended action in a Local Division for damages on the ground that the defendant had infected her with HIV when the parties had had sexual intercourse during 1995, claimed damages under three main heads, namely past medical expenses, future medical expenses and general  J damages. The Court heard evidence from the plaintiff, her counsellor and a doctor who was an  A expert in this field of medical science.

 

Held, that after hearing evidence the Court could, in terms of Rule 31(2)(a) of the Uniform Rules of Court, grant judgment against the defendant or make such order as to it seemed meet, but the enquiry was inevitably not as detailed or controversial as it would have been if the matter had been defended. (At 1015I/J–1016A/B.)  B

 

Held, further, as to the plaintiff's claim for past medical expenses in the sum of R19 399,06, that these should be allowed in full. (At 1016D.)

 

Held, further, as to the assessment of future medical expenses, that two factors were involved, namely the estimated amount of plaintiff's annual expenditure and the duration of such expenses. (At 1016E.)  C

 

Held, further, that an amount of R150 000 should be awarded for future medical expenses. (At 1016H/I.)

 

Held, further, as to the assessment of general damages, that on the evidence this involved the possibility of a reduction in life expectancy, psychological stress, contumelia and pain and suffering: the plaintiff's condition was one which called for extremely high damages under this head. (At 1016I and 1017D/E.)  D

 

Held, further, that the factors to be taken into account were, inter alia, the stress and inevitable fear of the unknown, the feelings of helplessness and hopelessness, the adverse effects that the condition had on the plaintiff's general relationship with all others, the adverse effects in the realms of her sex life and the psychological and social suffering. (At 1016J–1017A/B and 1017B–C, paraphrased.)  E

 

Held, accordingly, that the plaintiff was entitled to damages in the amount of R169 399,06 for past and future medical expenses and in the amount of R175 000 for general damages, giving a total of R344 399,06. (At 1017G.)

 

Annotations:

 

Rules Considered

 

Rules of Court  F

The Uniform Rules of Court, Rule 31(2)(a): see Erasmus and Barrow The Supreme Court Act 59 of 1959 and the Magistrates' Courts Act 32 of 1944 11th ed (1997) Part A at 59.

 

Case Information

 

Undefended action for damages. The facts appear from the reasons for judgment.  G

B C Wanless for the plaintiff. Defendant in default.

Cur adv vult.

Postea (February 21).

 

Judgment

 

Broome DJP:

 

The plaintiff in this action claims the amount of R466 031,86. Her cause of  H action, as stated in the particulars of claim is, in broad outline, that the defendant, a businessman who resides in the Durban area, infected her with HIV. This occurred when the parties had sexual intercourse, one with the other, in August or September 1995.  I

 

The summons was served on the defendant, as was an application to amend, which I hereby grant. He has not entered an appearance to defend, and the matter therefore comes before me as an undefended claim. Rule 31(2)(a) of the Uniform Rules of Court, however, provides that in a case such as this, after hearing evidence, the Court may grant judgment against the defendant or make such order as to it seems meet.  J

 

1997 (4) SA p1016

 

Broome D J P

 

The practice in this Division is to hear some evidence on claims for damages, but inevitably the  A inquiry is not as detailed or controversial as it would be were the matter defended, were the defendant represented by counsel and were the evidence of the witnesses who testified for the plaintiff tested by way of cross-examination and by the defendant leading countervailing evidence.  B

 

In this particular matter I have heard evidence from the plaintiff herself, from her counsellor, Mrs Towell, and from Dr Andrew Clark, who is well-acquainted with the facts of this case and is an expert in this field of medical science, having had considerable experience therein.  C

 

I am asked simply to fix a figure for damages and, in doing so, I stress that, the matter being undefended, the inquiry is inevitably not as detailed as would otherwise be the case. The plaintiff's claim falls under three main heads. The first is for past medical expenses and the schedule, annexure A, has been handed in and it demonstrates that the plaintiff's costs of medication to date amount to R19 399,06. I propose to allow that sum.  D

 

The second is for future medical expenses, the amount claimed is R195 000. These expenses are based on the evidence, in the main, of Dr Clark, who has given the present costs of the present medication. There are other forms of medication, far more costly, and these figures may  E well change in the future. Any assessment for future medical expenses involves two principal factors, namely the estimated amount of the annual expenditure and the duration of such expenses. That is to say the plaintiff's expectation of life - how much is it estimated she will have to pay per year and for how long is it estimated that she will have to pay these amounts. As indicated by Dr Clark, the matter of expectation is by no means clear. In the worst case, it  F would be estimated at five to seven years and in the best case it could be virtually a normal expectation. Much depends on the treatment the patient receives.

 

In the nature of things, it seems to me that the annual expenses will increase, not only on account of the inflationary tendencies to which we have had to become accustomed, but also I  G think allowance must be made for the plaintiff's condition becoming more serious and requiring more expensive drugs more frequently. The figure I arrive at is inevitably an estimate. It is an amount of money which, if put away now, will see the plaintiff through for the rest of her  H life. At present the expenses are R19 000 per year. I do not propose to indulge in any actuarial calculation, discounting future expenses at some arbitrary rate of interest. It seems to me that the discounting procedure is more or less offset by the inevitable rise in costs of these things and, as I say, the probable necessity of having more expensive drugs more often. In my judgment, justice would be done if I were to allow a figure of R150 000 under this head.  I

 

The third is for general damages. Here I have heard the evidence of the plaintiff herself, of Mrs Towell and, as I say, Dr Clark. They all touch on the matter of general damages which, as I have said, involve the possibility of a reduction in life expectancy, psychological stress, contumelia and pain and suffering. I do not propose to recapitulate all the evidence that I have heard. My impression of the plaintiff is that she is a well-adjusted person. She is now aged 34. She appears to have come to  J terms with her condition but, at the same time, there were hints in the evidence of other  A witnesses that there were times when the stress and inevitable fear of the unknown took its toll on the plaintiff. She has been seen on occasions to be tearful. It is obviously an extremely serious matter for her. It strikes at the very heart of her life. At times she must experience feelings of helplessness and hopelessness. She is aware of the adverse effect that this condition  B has on her general relationship with all others. That is with family and friends and people at work. All the more is this adverse effect evident when in the realms of her sex life. The anguish must be gross. It is so, as Dr Clark pointed out, that it is mostly of a psychological and social character but, nevertheless, it is a form of suffering for which the plaintiff must be adequately  C  compensated. Dr Clark was of the opinion that the initial episode of encephalitis and meningitis were, more probably than not, caused by the HIV condition. That, in itself, was a most unpleasant and relatively protracted episode in her life and was severely disabling. Now, as I say, she is left with HIV, with the various possible progressions mentioned by Dr Clark.  D

 

What I have said so far is just a very broad outline of some of the evidence that I have heard this afternoon. I see this as an extremely serious case. I see her condition as one which calls for extremely high damages under the head of general damages, as claimed. It is so that money can  E never put plaintiffs back in the position in which they were before they suffered their particular disability, but the Court must do its best to put a monetary figure on the plaintiff's disability, the effect that it has on her day-to-day life, the possible reduction in her life expectation and, I think, most important of all is the factor that I have already mentioned, that is the fear of the unknown. No one can foresee exactly what will happen. It ranges from the worst case to the  F best case and it is this uncertainty which is ever-present in her life and which is a matter which must cause great distress. It must cause her a great deal of stress and, inevitably, a great deal of fear. Doing the best I can, it seems to me that a figure of R175 000 would be appropriate in this case. I therefore refer to the particulars of claim and under para 8, award under 8.1 the amount  G claimed, 8.2 the amount of R150 000 and I take 8.4, 8.5 and 8.6 together and award R175 000, giving a figure of R344 399,06. To sum up then, there will be judgment for the plaintiff against the defendant in that amount, with costs, such costs to include the qualifying fees of Mrs Towell and Dr Clark.  H

 

Plaintiff's Attorneys: Garlicke & Bousfield.

 

 

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