Reyneke v Mutual and Federal Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Claassen J
• Judgment Date: 19 March 1991
• Citation: 1991 (3) SA 412 (W)
• Court: Witwatersrand Local Division

Claassen J:

The plaintiff is the father of a minor daughter, Suzette Analine Reyneke, who was born on 8 July 1970. He sues the defendant E company both in his personal capacity and in his capacity as father and natural guardian of Suzette. The claim arises out of a collision which occurred on 9 October 1986. Suzette was on roller skates in Lombard Street, Klerksdorp when the vehicle, which was insured by the defendant company, collided with her. The defendant has conceded the merits of F this case and only the question of the quantum of damages is in dispute.

Since the injury Suzette has been lying in the surgical ward, No 6, at the Klerksdorp hospital. Suzette sustained various minor injuries, viz a fractured jaw, a fracture of the metacarpal of her hand, multiple rib fractures and fractures of both knees. For all practical purposes these minor injuries have healed and are not relevant to the present dispute. G However, as a result of a major head injury, Suzette is in a permanent vegetative state, ie she falls into the class of cases known as 'cabbage' cases. She is unaware of all bodily functions, blind, mute, deaf and there is no prognosis of recovery of any of these faculties. The brain injury has caused prolonged loss of consciousness and haemorrhage in the deep seated ganglial areas of the brain. As a result H of this head injury she is 100% disabled. She is fed by a naso-gastric tube and her urine is drained by an indwelling catheter. She responds to pain by decerebration posturing. There is a well-marked cough reflex on tracheal pressure. Her pupils are large and do not respond to light. In fact she is blind. Her primary reflexes are still present but she has no spontaneous movement. She cannot speak. She breathes spontaneously. I There are minor pressure sores which have healed on both pinnae of her ears. Her bowels are evacuated either spontaneously or with digital help two or three times a week in bed. There have been episodic chest and bladder infections but these usually clear up within two to three days and in a few instances after approximately nine days. Suzette is J emaciated and has lost approximately

Classen J

A 16 kilograms in weight since the date of the collision. At that time she weighed approximately 55 kilograms, whereas now she only weighs 39 kilograms. At the time of the collision she was 16 years of age and is therefore at present 20 years old. She will be bedridden for the rest of her life.

B In medical terms her condition is described as being a Persistent Vegetative State or PVS after a definition by Jennett and Plum made in 1972. A brain scan shows extensive loss of cortex and diffuse atrophy. She has been in a coma since the collision. The Persistent Vegetative State described patients with irreversible brain damage who, on recovery from a deep coma, pass into a state of seeming wakefulness and reflex C responses but never return to a cognitive sapient state. It is the result of destruction of the cerebral cortex of the brain but with sufficient preservation of the brainstem to sustain the vegetative functions - respiration, circulation, gag-reflex etc. The PVS is distinguishable from brainstem death where the patient is kept alive by D mechanical respiratory support which, if withdrawn, will result in death.

The PVS has been described in the popular press as 'the living death'. I gather from Dr Froman's medico-legal report that a mother of a teenager who lived for six years in a vegetative state after a head injury, said in a British television documentary that her son 'had died E at the roadside but that the funeral was six years later'. Dr Froman's medico-legal report describes the state as follows:

'The vegetative state, as defined by Jennett and Plum implies that there is no cerebral cortical function as judged behaviourally.

"Patients in this state have quite a wide range of responses including eye opening with sleep and wake rhythms, and sometimes the ability to F follow with the eyes; they usually make posturally reflex adjustments with the limbs and their hands may show a grasp reflex. These responses are often interpreted by relatives as signs of returning to consciousness and grounds for optimism regarding further recovery. But such responses can all occur at the sub-cortical level, and these patients never speak, nor do they make any response that is psychologically meaningful." '

G I am told by Dr Froman that the Glasgow Outcome Scale for brain damage recovery defines the process of recovery in five stages:

1.

Death, which is the worst state.

2.

The persistent vegetative state.

3.

Severe impairment.

4.

H Moderate impairment.

5.

Good recovery.

According to this scale of recovery the PVS is the worst condition short of death. An instructive article on the behaviour of patients in the vegetative state entitled 'Hypoxic-ischemic brain injury and the I vegetative state: Clinical and neuropathologic correlation' is to be found in the journal Neurology (Ny) of August 1981 (31) at pp 995 - 7.

As stated previously the question of negligence is not in dispute. The defendant company has conceded the merits. The parties have also agreed past medical expenses incurred by the plaintiff in the amount of R4 872,75. Initially the question of future medical expenses to be incurred by the plaintiff was in dispute but this has become settled as a result J of

Classen J

A a written undertaking given by the defendant in terms of s 8(5)(a) of the Motor Vehicle Accidents Act 84 of 1986. I will revert to this undertaking later. The issues that remain for decision are threefold:

(1)

Suzette's remaining life expectation;

(2)

general damages;

(3)

past and future loss of earnings.

I will deal with each of these issues seriatim.

A. Suzette's future expectation of life

The first issue for decision which arises in this case is the question of Suzette's longevity. In this regard I was referred to a book entitled C 'Management of Head Injuries' written by Jennett and Teasdale who are both professors of neurosurgery at the University of Glasgow. At 312 the learned authors put the problem aptly:

'How long young head injured patients who are in the vegetative state (at three months) may survive is of some importance. This is of particular concern to lawyers when calculating appropriate personal D damage claims following accidents, and who have to consider the possibility of many years of dependant existence. The average age of head injured patients in the Data Bank study who survived in this state was 27 years; their normal expectation of life would therefore be some 45 years. There is as yet no evidence as to whether such patients could survive for this long, because the kind of intensive care that has made the early rescue of these badly brain damaged patients possible began to E be widely used only about 20 years ago. The longest head injured vegetative survivor known to us died 18 years after sustaining his injury in 1959. A review of over 100 vegetative patients in Japan revealed that two-thirds were still alive three years later. (See "Short Report: Five-year follow-up study of patients with persistent vegetative state" in Journal of Neurology, Neurosurgery and Psychiatry 1981, (44) at 552 - 14.) This was an etiologically mixed group of patients, which F included some with developmental and degenerative disorders although about a third were a result of trauma and a third of an episode of hypoxic brain damage.

How long these patients can live and how long they do live may be different. It will be pointed out later that a consensus is emerging that survival in the vegetative state is worse than death.... It follows from this that in the event of complications developing, such as G respiratory tract infections, many doctors would regard it as good medical practice not to intervene actively by giving antibiotics, if the family is in agreement with such a policy. This is certainly a common practice in countries where medicine is practised without undue legal harassment. Even when such a policy has been agreed to for an individual case the patient may still live for some years.' H

See also Strauss Doctor, Patient and the Law at 300 - 2.

In regard to the question of longevity I heard the evidence of Drs Havemann, Froman, De Villiers and Prof Van Rooyen. The plaintiff first called Dr Havemann to testify. He is a general practitioner in Amanzimtoti. Since February 1985 he has been the doctor attending to the I inmates at the Jonah Vaughn Home where currently two PVS patients are cared for. The first patient is a Miss Fannin who has survived a head injury by 12 years. The second patient is a Miss Harvey who has survived five years after sustaining a head injury. Both are classified as PVS patients. Dr Havemann also examined Suzette and according to his J estimate she would probably survive another 10 years.

Classen J

A The plaintiff then called Dr Froman to testify in this regard. He is a neurosurgeon with 25 years' experience in the field of PVS patients. Let me say immediately that Dr Froman was a most impressive witness. He was totally non-partisan to the disputes in this case. I found him to be reliable both as to his professional and academic experience and as to the practical application thereof in the present instance. He was B prudent and conservative in his judgments and estimates. He had a meeting with Dr Snyckers, the neurosurgeon who had filed a medico-legal report on behalf of the defendant. They agreed that basically a period of five years of further life would be probable. Both doctors attached a rider to their joint statement. Dr Snyckers' rider was: C

'One could argue that if the sole aim were the unconditional prolongation of this life by whatever means necessary, a very much longer life expectancy is possible.'

(See exh I, p...