Benjamin v De Beer

• Jurisdiction: South Africa
• Judge: Plewman J A
• Judgment Date: 27 May 1997
• Docket Number: 476/93
• Hearing Date: 19 May 1997
• Court: Appellate Division

Plewman J:

This is an appeal by leave of this Court against an award of damages. The appellant was the only party represented on appeal. The respondent could apparently not be traced.

Appellant is a medical practitioner. In 1986 he was consulted by the respondent, a 42-year-old woman, who was suffering from a condition known as Hashimoto's thyroidosis. This is a malady which, other than in the most extreme circumstances (which did not obtain in this case) must, according to sound medical opinion, be treated conservatively. Surgery is to be avoided and even if it ultimately becomes necessary the thyroid gland is not entirely removed. Appellant, contrary to known teachings, decided to operate and performed a thyroidectomy removing the respondent's thyroid gland entirely. To compound this error post operative complications set in. The respondent suffered a severe haemorrhaging and asphyxia which led to cardiac arrest. Respondent was rushed on two occasions into the operating theatre for further treatment. A tracheostomy was inserted under a general anaesthetic to facilitate her breathing. This

1997 JDR 0407 p3

Plewman J

procedure involves the introduction of a metal tube which penetrates through the throat but, of course, protrudes and is visible. It also has unfortunate consequences if the patient chokes or coughs which will be referred to later.

The respondent's case was that the operation was unnecessary; that it was performed without her consent; and, indeed, that she had not been informed that the operation was to be performed or what its effect would or could be. She sued appellant on the grounds of negligence and claimed damages both general and special. Negligence was disputed until shortly before the date set for trial. Appellant then conceded that he had been negligent and that respondent had, in consequence, suffered damages. Appellant, however, was much less yielding in relation to the amount of compensation to be paid to respondent. The trial proceeded (only) on the question of quantum and was contested by counsel on appellant's behalf with an enthusiasm that tended to exceed the bounds of what was called for

1997 JDR 0407 p4

Plewman J

in the circumstances. After a protracted hearing (lasting some twelve court days) the trial judge awarded respondent an amount, computed under five heads of damage, totalling R303 185. The issue in the appeal is the correctness of this award.

Counsel for the appellant (who did not represent appellant in the court a quo) limited his argument to an attack on certain components of the award in respect of future medical expenses; to the basis of the computation of the claims for past and future loss of earnings, and to the award made for general damages. This has reduced the ambit of the appeal to matters which can be briefly discussed under each of the relevant heads and no extensive review of the evidence or of the relevant principles need be undertaken. This will lead to a somewhat disjointed consideration of the facts but this cannot be avoided.

It was for appellant to show in respect of each contested item that the award had been incorrectly assessed by the court a quo. In AA Mutual

1997 JDR 0407 p5

Plewman J

Insurance Association v Maqula 1978 (1) SA 805 (A) at 809 B-D it was said:

"It is settled law that a trial Court has a wide discretion to award what it in the particular circumstances considers to be a fair and adequate compensation to the injured party for his bodily injuries and their sequelae. It follows that this Court will not, in the absence of any misdirection or irregularity, interfere with a trial Court's award of damages unless there is a substantial variation or a striking disparity between the trial Court's award and what this Court considers ought to have been awarded, or unless this Court thinks that no sound basis exists for the award made by the trial Court. Sandler v. Wholesale Coal Suppliers Ltd., 1941 A.D. 194 at pp. 199-200; Parity Insurance Co. Ltd. v. Van den Bergh, 1966 (4) S.A. 463 (A.D.) at pp. 478 in fine-479A; Protea Assurance Co. Ltd. v. Lamb, 1971 (1) S.A. 350 (A.D.) at p. 534 in fine-535A."

I commence with the arguments directed at the award for future medical expenses in the sum of R33 300. The expenses claimed were set out in Annexure X to the particulars of claim. The first five items related

1997 JDR 0407 p6

Plewman J

to the cost of two future operations. The need for the future treatment was conceded and counsel's submission was only that respondent's claim for the cost of a private clinic should not have been allowed but only the lesser amount which would be charged by the Johannesburg General Hospital. The contention was that respondent had a duty to mitigate her damages and that she was according obliged to opt for the less expensive of the two institutions. I approach the matter on the basis upon which it was argued. The question would then be whether it was unreasonable for the respondent to elect to undergo the future treatments at the private institution of her choice. The court a quo held that respondent was not obliged to undergo the treatments at the General Hospital. The evidence, in short, was that the surgeon of her choice operated at the private institution in question and not at the general hospital. Respondent, in addition, stated in evidence that she was unhappy about the treatment she had received at the General Hospital on an earlier occasion. In the light of

1997 JDR 0407 p7

Plewman J

this...