Collins v Administrator, Cape

• Jurisdiction: South Africa

Collins v Administrator, Cape
1995 (4) SA 73 (C)

1995 (4) SA p73

Citation	1995 (4) SA 73 (C)
Case No	4500/93
Court	Cape Provincial Division
Judge	Scott J
Heard	November 28, 1994; November 29, 1994; November 30, 1994; December 1, 1994; December 5, 1994; December 6, 1994; December 8, 1994; December 9, 1994; December 12, 1994; December 19, 1994; December 20, 1994
Judgment	February 9, 1995

Flynote : Sleutelwoorde G

Negligence — What constitutes — Hospital patient — Duty towards — Patient entitled to be treated with due and proper care and skill — Such care and H skill that which a reasonable practitioner would ordinarily have exercised under similar circumstances — Standard of excellence beyond financial resources of hospital authority cannot be expected.

Negligence — Action for damages — For bodily injuries — Non-pecuniary damages for pain and suffering, shock, discomfort, loss of amenities and I shortened life expectation — Plaintiff having become permanently unconscious for rest of her life as result of defendant's negligence — No basis for awarding such a plaintiff aforesaid non-pecuniary damages — Delictual action for damages compensatory, not punitive — No room for nominal award to reflect society's demand for some retribution for J injustice done to plaintiff.

1995 (4) SA p74

A Negligence — Action for damages — For bodily injuries — For loss of amenities of life — No basis for accepting in South African law distinction between subjective and objective element in loss of amenities of life — As such claim not transmissible to deceased estate, need for such distinction not arising in South African law.

B Negligence — Action for damages — For bodily injuries — Non-pecuniary damages for pain and suffering, shock, discomfort, loss of amenities and shortened life expectation — So-called 'functional' approach involving award of non-pecuniary damages only to extent that such damages can fulfil a useful function in providing for physical arrangements to make victim's C life more endurable — Such approach consistent with principles of South African law — Function to be served by award of damages relevant in determining what damages to be awarded — Where award of non-pecuniary damages to permanently unconscious plaintiff would not serve any purpose for plaintiff at all, no basis for making award — Nor can such award be D made, where plaintiff is a young child, as means of indirectly awarding compensation to parents for their bereavement and suffering.

Headnote : Kopnota

A patient in a hospital is entitled to be treated with due and proper care E and skill. The degree of care and skill that is required is that which a reasonable practitioner would ordinarily have exercised in South Africa under similar circumstances. (At 81I/J-82A.) However, a standard of excellence cannot be expected which is beyond the financial resources of the hospital authority. (At 82B/C.)

Where a defendant's negligence has resulted in the plaintiff becoming permanently unconscious for the remainder of her life, there is no basis in South African law for awarding her non-pecuniary damages in respect of pain and suffering, shock, discomfort, loss of amenities or shortened F expectation of life; for the delictual action for damages is compensatory, not punitive. For that reason also there is no room for the approach in Germany of making a nominal award to reflect, apparently, society's demand that some retribution be made for the injustice done to the plaintiff. Where the plaintiff is unconscious and all her physical needs have been taken care of, it is not possible to compensate her for her loss. It would be like paying a dead person money in order to compensate him for the loss of his life. (At 95D, 91G/H, 93H and 93I/J-94B.)

There is no basis for accepting in South African law the distinction drawn G in English law between a subjective and an objective element in the loss of amenities of life, a distinction which owes its existence to the Law Reform (Miscellaneous Provisions) Act of 1934 which made a claim for loss of expectation of life transmissible to a deceased's estate. As such a claim is not transmissible in South Africa the occasion for such distinction does not arise and, without such need, there is no logical basis for the drawing of such a distinction. (At 94D/E and 94E-F.)

H Consistent with the principles of South African law is the so-called 'functional' approach which involves the award of non-pecuniary damages only to the extent that such damages can fulfil a useful function in making up for what has been lost in the sense of providing for physical arrangements which can make the victim's life more endurable. That the function to be served by an award of damages is a relevant consideration in determining what damages should be awarded was accepted by the Appellate Division in Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A). (At 95B/C-C, 92H/I-I and 93E/F.) I

Where an award of non-pecuniary damages to the unconscious plaintiff will not serve any purpose for the plaintiff at all, whether useful or otherwise, there is no basis for making any award. (At 95B/C-C, paraphrased.) Nor can the Court make such an award where the plaintiff is a young child as a means of indirectly awarding compensation to its parents for their bereavement and suffering. (At 94I/J.)

The plaintiff was the father of a baby of 16 weeks who was a patient in the paediatric tracheostomy unit of the T hospital where she sustained J irreversible brain damage

1995 (4) SA p75

A as a result of the displacement of a tracheostomy tube on which she was dependent for ventilation. She was reduced to a vegetative state which would remain for the rest of her life, estimated to be another two to seven years. The plaintiff instituted action in a Provincial Division in his personal capacity and as natural guardian of his daughter for damages on the grounds of negligence of the hospital staff. At the conference held in terms of Rule 37, the parties agreed that, in the event of the defendant being found liable, he was to be directed to provide through the hospital all future medical and hospital care needed for the child until B her death. The child was unable to see or to swallow; had no awareness of environmental stimuli or pain nor any apparent awareness of herself. She was in every respect a 'cabbage' case.

Held, on the facts, that the hospital staff had been negligent in failing to replace the displaced tracheostomy tube without undue delay (at 82I/J-83G, summarised) and that plaintiff was entitled to the order directing defendant to care for the child as agreed at the Rule 37 C conference (at 83G-H).

Held, further, that as the child would be in a permanent vegetative state until she died, which she would probably do within a matter of a few years, it would be of no consequence to her what amount, if any, was awarded to her in respect of non-pecuniary damages; she would never know of such award and would receive no benefit from it whether knowingly or unknowlingly (at 84E-F); that, accordingly, the plaintiff was not entitled to an award of non-pecuniary damages (at 95D).

D Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484 (W) and Reyneke v Mutual & Federal Insurance Co Ltd (1991 WLD) reported Corbett and Honey The Quantum of Damages vol IV at A4-65 considered and not followed.

The following decided cases were referred to in the judgment of the Court:

Andrews v Grand and Toy Alberta Ltd (1978) 83 DLR (3d) 452 (SCC)

Arnold v Teno (1978) 83 DLR 3d 609 (SCC)

Benham v Gambling [1941] 1 All ER 7 (HL)

E Croke (a minor) and Another v Wiseman and Others [1981] 3 All ER 852 (CA)

Dickinson v Galante 1949 (3) SA 1034 (SR)

Dube v Administrator, Transvaal 1963 (4) SA 260 (W)

Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484 (W)

Goldie v City Council of Johannesburg 1948 (2) SA 913 (W)

Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 (2) SA 944 (C)

F Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 All ER 332 (CA)

Lim Poh Choo v Camden and Islington Area Health Authority [1979] 2 All ER 910 (HL)

Marine & Trade Insurance Co Ltd v Katz NO 1979 (4) SA 961 (A)

Queen, The v Jennings (1966) 57 DLR (2nd) 644 (SCC)

G Reyneke v Mutual & Federal Insurance Co Ltd (1991 WLD) Corbett & Honey The Quantum of Damages vol IV at A4-65

Roberts NO v Northern Assurance Co Ltd 1964 (4) SA 531 (D)

Sigournay v Gillbanks 1960 (2) SA 552 (A)

Skelton v Collins (1966) 115 CLR 94 (HC)

Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A)

Thornton v S Dist No 57 Bd of S Trustees (1978) 83 DLR (3d) 480 (SCC)

West (H) & Son Ltd and Another v Shephard [1963] 2 All ER 625 (HL)

H Wise v Kaye and Another [1962] 1 All ER 257 (CA)

Case Information

Civil trial in an action for damages. The facts appear from the reasons for judgment.

J C Swanepoel for the plaintiff.

K Alexander for the defendant.

Cur adv vult. I

Postea (February 9).

Judgment

Scott J:

The plaintiff sues for damages both in his personal capacity and J in his capacity as father and natural guardian of his minor daughter,

1995 (4) SA p76

Scott J

A Lee-Ann. The action is a sequel to a tragic incident which occurred at the Tygerberg Hospital on 21 October 1991, when Lee-Ann suffered severe cerebral hypoxia following the displacement of a tracheostomy tube on which she was dependent for ventilation. At the time she was barely 16 weeks old. As a result of irreversible brain damage she is now in what is B described as a permanent vegetative state. Although her brainstem function is sufficient to maintain adequate ventilation and circulation she has no intellectual function. She has no awareness of environmental stimuli and no apparent awareness of herself. There is no hope of recovery and she will in all...