Bay Passenger Transport Ltd v Franzen

• Jurisdiction: South Africa
• Judge: Botha JA, Holmes JA, Trollip JA, Muller JA and Hofmeyer JA
• Judgment Date: 05 November 1974
• Citation: 1975 (1) SA 269 (A)
• Hearing Date: 24 September 1974
• Court: Appellate Division

Muller, J.A.:

On 17 June 1969 the respondent (hereinafter referred to as plaintiff), then 20 years of age, was seriously injured in a collision between a motor cycle, of which he was the driver, and a motor bus, the property of the appellant company and driven at the time by one John Boltina.

The plaintiff instituted action in the Port Elizabeth Circuit Local Division against the appellant company, a self-insurer in terms of the

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Motor Vehicle Insurance Act, 29 of 1942, for damages suffered by him as a result of the said injuries.

The trial Court (KOTZÉ, J.) found that the collision was caused by the joint negligence of the said Boltina and the plaintiff, and assessed the degrees to which they were at fault as 75 per cent and 25 per cent, respectively.

A On the basis of that assessment damages were awarded to plaintiff as follows:

(i) Past medical expenses	R4 811,48
(ii) Future medical expenses	R1 200,00 B
(iii) Past loss of earnings	R3 146,00
(iv) Future loss of earnings	R1 200,00
(v) General damages - for pain, suffering,disability and loss of amenities and disfigurement	R30 000,00
	R40 357,48
Less 25 per cent	R10 089,37
	R30 268,11

D Because the injuries in question were suffered by the plaintiff in the execution of his duties as a traffic inspector in the employ of the Port Elizabeth Municipality, the amount awarded to him was further reduced by the sum of R15 673,23, which amount had been paid to him as compensation in terms of E the Workmen's Compensation Act, 30 of 1941. That is, however, not a matter of consequence in the present appeal.

The appellant company noted on appeal against the order of the trial Court. On coming to prepare the record of the case for the purposes of appeal, the appellant's attorneys discovered F that, except for the evidence of two witnesses (Boltina, the driver of the bus, and Dr. van Rensburg, a specialist surgeon), the whole record of evidence adduced at the trial was missing. According to the Registrar of the Eastern Cape Division, a recording machine was used at the trial. The evidence of Boltina and Dr. van Rensburg was transcribed, at the request of the trial Judge, before judgment was given. The belts on which G all the other evidence was recorded were, after judgment, mislaid in the offices of the Registrar of the said Division and, despite diligent search, could not be traced.

In the premises, the legal representatives of the parties co-operated in placing before us the best available record of H the evidence. This consists of

(a)

the recorded, and transcribed, evidence of Boltina and Dr. van Rensburg;

(b)

the reports of the medical witnesses which were read out and handed in at the trial;

(c)

a transcript of the notes made at the trial by the learned trial Judge;

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(d)

a transcript of the notes made at the trial by attorney Bracher of the evidence of certain witnesses; and

(e)

a transcript of notes made at the trial by Adv. Claassens of the evidence of the witness Lourens.

A The record thus compiled serves as a record for the purposes of appeal.

The appeal is directed against

(1)

the findings of the trial Court with regard to the degrees of negligence of the persons involved in the collision, and

(2)

the quantum of general damages awarded.

B For a proper understanding of the contentions advanced with regard to the matter under (1) above, it is necessary to describe in some detail the robot-controlled intersection in which the collision occurred.

[The learned Judge analysed the evidence and proceeded.]

For the reasons stated, I cannot agree with the contention C that, in assessing the blameworthiness of the persons involved, Boltina's negligence should have been assessed at less than 75 per cent. Indeed, I am inclined to the view that the collision was caused entirely by his negligence. However, inasmuch as no cross-appeal was noted by the plaintiff against the finding by the trial Court of contributory negligence on his part, the matter need not be debated further.

D The appeal, in so far as it is directed to this aspect of the case, must fail for the reasons stated.

I turn now to the question of damages. The plaintiff suffered the following injuries in the collision:

(1)

A comminuted compound fracture of the right femur.

(2)

Severance of the E right femoral artery.

(3)

Rupture of the urethra.

(4)

Peroneal lacerations extending up the thigh to the rectum.

(5)

Degloving of the whole of the anterolateral aspect of the left thigh from the groin to above the knee.

(6)

Fracture of the right F ramus of the pelvis.

In his judgment KOTZÉ, J., summarised the medical treatment given to the plaintiff and the consequences of the injuries suffered by him. I propose to quote that summary in full. I do so because the learned trial Judge had the advantage of hearing G the evidence - that of the medical witnesses and the plaintiff - whereas we, for reasons already mentioned, have before us, with regard to this aspect of the case, only the written medical reports and a transcript of the notes of the Judge and of the notes of attorney Bracher. Moreover, the factual statements contained in the Judge's summary were (save H in one minor respect, to be dealt with in due course) not questioned on appeal.

[The learned Judge then set out the summary and having dealt with the grounds upon which the trial Court had made an award of general damages continued as follows.]

Counsel for the appellant, recognising the restricted ambit of this Court's powers to interfere with a trial Court's assessment of damages (Sandler v Wholesale Coal Suppliers Ltd., 1941 A. D. 194 at pp. 199 - 200, and Parity Insurance Co. Ltd. v Van den Bergh, 1966 (4) SA 463 (AD)

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at pp. 478 - 9), contended that this was a case where this Court could, and indeed should, interfere inasmuch as, so he submitted, the trial Court, in the assessment of general damages, not only misdirected itself in certain material respects, but also awarded a sum which was wholly excessive in the circumstances.

A The respects in which it was contended that the trial Court misdirected itself were as follows.

[The learned Judge then dealt with these contentions and proceeded.]

In the premises, even if it were to be found that, on the part of the trial Judge, there was a misunderstanding of the B evidence on this aspect, I would not, in the circumstances of the case, regard that as a misdirection which, in itself, would justify interference with the award of general damages made by the Court.

There remains to be dealt with the contention that the award of R30 000 as and for general damages is excessive - in the C sense contended for by counsel for the appellant, namely, that there is a striking disparity between what the trial Court awarded and what this Court would consider ought to have been awarded (Parity Insurance Co. Ltd. v Van den Bergh, 1966 (4) SA 463 (AD) at pp. 478 - 479, and Protea Assurance Co. Ltd. v Lamb, 1971 (1) SA 530 (AD) at pp. 535).

In the course of his argument counsel referred to certain D cases, three in number, which he submitted fall, broadly speaking, in the same category as the instant case and give some idea of what an appropriate award would be (Marine and Trade Insurance Co. Ltd. v Goliath, 1968 (4) SA 329 (AD) at p. 333...