Gerke, NO v Parity Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Ludorf J
• Judgment Date: 19 November 1965
• Citation: 1966 (3) SA 484 (W)
• Court: Witwatersrand Local Division

Ludorf, J.:

In this action the plaintiff claims damages in her capacity as curatrix bonis on behalf of Louis Wessels who was injured by a

Ludorf J

driver of a motor car insured by the defendant in terms of the Motor Vehicle Insurance Act, 29 of 1942.

No evidence was led but the parties agreed that the matter be decided on the following facts:

A Before the injury the patient was a healthy young man of 21 years with a normal life expectation; he had just married six weeks before; his wife was expecting a baby and the child has been born since, i.e. after the accident.

The patient was at the time of the collision in the employment of the South African Railways as an erector at a salary of R120 per month, and B had been in such employ for four months. His probable progression would have been to chargeman or foreman erector at a salary of plusminus R220 per month before normal retirement age of 63.

On 24th April, 1963, the patient, while crossing a main road, was struck down and immediately rendered unconscious by a vehicle insured by the C defendant, as a result whereof the patient suffered certain brain injuries more fully described hereunder.

Physical injuries suffered in the collision were lacerations of the face, abrasions of trunk and legs and a dislocated shoulder. While the patient was in a coma, i.e. for two months after the accident, he contracted and was treated for pneumonia; a tracheotomy was also D performed within a day or two. The patient remained in a coma for approximately two months after his admission to hospital. When he regained physical consciousness it appeared that the very severe brain injuries he had suffered, apparently in the midbrain, frontal and temporal lobes and in the hypothalamic region had resulted in the following permanent effects:

(i)

Severe spasticity of all four limbs, with only a very limited E purposeful movement of both arms.

(ii)

Severe mental deterioration and a major loss of all mental faculties; unawareness of all bodily functions, muteness, except for the ability to emit some elementary sounds, such as moaning or groaning.

F It was clear at this stage already that the patient would never be able to comprehend or to talk again, and to recover control of his bodily functions or his limbs.

He would remain bedridden and helpless for the rest of his life. But during all his life his mental state would be vegetative.

G The patient, shortly put, had suffered the most severe brain injuries compatible with survival.

After the comatose period of two months, the patient made a slow recovery from his external injuries, and a slight improvement in his mental state occurred until he reached what will be referred to hereunder as a 'peak period' when, for some months, he was quite H responsive to certain basic stimuli. He showed excitement at times on hearing noises, looked directly at people, recognised certain people whom he saw daily and exhibited other emotions such as fear and apprehension. He groaned and moaned at times, and reacted to analgesics.

He seemed, during the peak period of his post-traumatic history, to be aware of his surroundings and his bodily functions, albeit only to a very limited degree. Perhaps better put: he began to react to certain basic sensory stimuli.

Ludorf J

Suddenly, only a few months before the trial, the patient's condition fell from the peak and deteriorated rapidly, so much so that he now A weighs only 70 lbs., lies curled-up as a mere bundle of bones and skin, totally inaccessible and unresponsive. As agreed between the parties, his life expectation is now only six months, so that, reckoned as from the date of the accident, his life expectation has been reduced to three years.

Because of the patient's mute and largely inaccessible condition, no adequate medical examination could be carried out to determine the patient's own insight into his condition or his awareness of his B disability and his loss of amenities and expectation of life.

He is unaware of his condition and does not appreciate the condition in which he is; therefore, there is no mental suffering which arises for consideration by me.

C He does not know and cannot appreciate that his expectation of life has been shortened, nor will he have such knowledge or appreciation during the remainder of his life.

These facts and medical opinions as to the patient's awareness or consciousness have been placed before the Court as the Court may decide to have regard thereto, but it was submitted on behalf of the plaintiff D that the patient's knowledge and awareness should be irrelevant in the assessment of general damages.

As a result of the accident, the claimant, who was then a healthy and normal young man with normal prospects of a happy and secure life and of the enjoyment of average amenities, was reduced to a condition E hereinbefore set out, and his life expectation shortened from a normal one to an expectation of three years.

The parties also come to agreement in regard to the negligence of the parties, which contributed to the resultant injuries and to the quantum of damages to be awarded to the patient, except for 'loss of amenities and shortened expectation of life - to be determined by the Court'.

The agreement is as follows:

1. F Apportionment will be on a 50 per cent basis.
2. Plaintiff's common law claim will be as follows on 100 per cent basis:
(a) Loss of earnings	R3,681.00
(b) Nursing and medical costs, paid and to be paid:
(i) out of plaintiff's own funds (i.e. over and above the R25 per month from the S.A.R. &H. Administration), including R200 estimated future medical expenses	1,169.11
(ii) by the S.A.R. & H. administration	525.00
(c) Medical expenses (by D.A. R. & H. Administation)	5,205.47
(d) Pain and suffering	500.00
(e) As damages, being agreed contribution to costs of applications for appointment of curator	400.00
	R11,480.58."

Our Courts have not yet been called upon to consider an award of damages in favour of a plaintiff who has been unconscious since he received the injury but the House of Lords in England has considered two such cases and consequently I think it would be convenient to start with a consideration of the approach in England.

In the case of Wise v Kaye and Another, (1962) 1 All E.R. 257, the head-note reads as follows:

Ludorf J

'In assessing damages for negligence causing personal injuries -

(a)

the fact that the injured person is unlikely to live to enjoy personally the damages awarded is not a ground for reducing the amount of general damages awarded (see p. 264, letter I, p. 266, letter I, to p. 267, letter A, and p. 275, letter D, post).

Dicta of Lord PARKER, C.J., and HOLROYD PEARCE, L.J., in Oliver v. A Ashman (1960) 3 All E.R. at p. 680, and (1961) 3 All E.R. at pp. 327, 328) approved.

(b)

the injured person's lack of knowledge of his or her condition is no ground for reducing the amount of general damages awarded to him or her, save in regard to the factor of pain and suffering which may be excluded thereby (see p. 265, letter C, and p. 268, letter I, post).

McGrath Trailer Equipment Pty. Ltd v Smith (1956) V.L.R. 738, Hayman v Pike, 1958 S.A.S.R. 72, applied.

B By reason of the negligent driving of the defendants, the plaintiff, a girl aged twenty, was rendered unconscious and received serious injuries to her brain, which lessened her expectation of life. She was still unconscious three and a half years after the accident, and was not expected ever to recover consciousness. At the time of the accident she was in employment and she was engaged to be married. The trial Judge awarded £879 8s. 11d. special damages, being loss of earnings to the date of trial, £2,000 general damages for loss of probable future earnings, which was based on probable earnings during the period the C plaintiff might have been expected to live but for the accident, £400 damages for loss of expectation of life, and £15,000 general damages for her physical injuries and the resultant loss of the amenities of life. It was unlikely that she would be able personally to enjoy the damages awarded or that they would be used to maintain her. On appeal against this assessment, it being undisputed that the basis of the award of £2,000 could not be followed in the Court of Appeal in view of the D subsequent decision in Oliver v Ashman, (1961 3 All E.R. 323), and the award of £400 not being questioned.

Held: (i) (DIPLOCK, L.J., dissenting) the award of £15,000 general damages, which in truth was an award for loss of amenity, since pain and suffering and medical expenses and expenses for future care could be excluded and loss of earnings and of expectation of life had been separately assessed (see p. 269, letter E, post), should not be disturbed, for, in relation to a living person, it was not the Court's duty to measure the damages according to the loss of happiness occasioned by the injury but according to the physical injury and E consequent loss of amenity, the factors (a) and (b) stated at letter B to E above being irrelevant to the extent there stated (see p. 262, letter D, p. 263, letter F, p. 264, letters C and H, and p. 269, letter F, post).

(ii) the award of £2,000 for loss of probable future earnings should be reduced to £1,500 because, in assessing damages for loss of probable future earnings, the loss to be assessed was that during the curtailed period for which the plaintiff was expected to live after the accident.

F Oliver v Ashman, (1961) 3 All E.R. 323, followed.

Per SELLERS, L.J.: Benham v Gambling, (1941) 1 All E.R. 7; Flint v Lovell, (1934) All E.R. Rep. 200 and Rose v Ford, (1937) 3 All E.R. 359 are no authority in relation to a...