Gibson v Berkowitz and Another

• Jurisdiction: South Africa
• Citation: 1996 (4) SA 1029 (W)

Gibson v Berkowitz and Another
1996 (4) SA 1029 (W)

1996 (4) SA p1029

Citation	1996 (4) SA 1029 (W)
Case No	93/15774
Court	Witwatersrand Local Division
Judge	Claassen J
Heard	April 15, 1996; April 16, 1996; April 17, 1996; April 18, 1996; April 19, 1996; April 22, 1996; April 23, 1996; April 24, 1996; April 25, 1996; April 26, 1996; April 29, 1996; April 30, 1996; May 2, 1996; May 3, 1996
Judgment	June 20, 1996
Counsel	P Soller (attorney) for the plaintiff; M E Luitingh (with him T Plewman) for the defendant

Flynote : Sleutelwoorde B

Negligence — Liability for — Psychological damage resulting from bodily injury — Where claimant primary victim, viz one who suffered direct physical injury, defendant liable for all forms of nervous shock and psychological trauma resulting from such injury — Thin skull rule applying — Claimant able to recover C damages attributable to pre-existing psychological weakness — Irrelevant whether precise nature and extent of plaintiff's psychological trauma foreseeable — Defendant liable for negative effect on claimant of subsequent stressors such as family problems, excessive drug therapy or trial stress. D

Negligence — Action for damages — Damages — Apportionment of — Apportionment of damages in terms of s 1(1)(a) of Apportionment of Damages Act 34 of 1956 — Whether plaintiff's own negligent conduct constituting contributory negligence (resulting in apportionment) or a novus actus interveniens (resulting in E interruption of legal causation) — Distinction to be drawn between parties' negligence prior to harmful event, on one hand, and any relevant subsequent negligence, on other — 'Fault' as used in s 1 of Act encompassing both negligence contributing to occurrence of harmful event and negligence affecting the nature F and extent of damages suffered, even where defendant's negligence sole cause of harmful event — Plaintiff's 'fault' in above sense restricted to 'pre-tortious' fault — Only pre-delictual negligence relevant to possible reduction of his damages under Act, while post-delictual negligence bearing on legal causation and could be regarded as novus actus sufficiently interrupting chain of causality to absolve defendant from liability. G

Headnote : Kopnota

The plaintiff, a 28-year-old woman, sued the first defendant, a gynaecologist and obstetrician, and the second defendant, a hospital, for pain, suffering and loss resulting from a botched cauterisation procedure performed by the first defendant in September H 1992 in which undiluted instead of diluted acid was used to swab pre-cancerous cells in her vagina, resulting in serious burns of the genital area, the small of the back, and the buttocks. Plaintiff suffered severe pain and discomfort for months afterwards. She required round-the-clock help with the changing of dressings, ablutions, and bathing. She was, for a time, sexually dysfunctional. Reconstructive surgery was performed, resulting in further pain and discomfort. She underwent a personality change, from I being enterprising, dynamic and sociable to being withdrawn and depressed. She lost interest in her appearance and began overeating. Although she eventually returned to work, it was to a position inferior to the one she had had before. By late 1995 she had developed a major depressive disorder, coupled with anxiety. She was no longer able to work. It was, however, common cause that this condition was curable within about 18 months, which resulted in the limitation of plaintiff's claims for future loss of earnings and future medical expenditure.

The plaintiff contended that defendants were liable for the costs associated with her depressed condition. Defendants, while admitting negligence, contended that J

1996 (4) SA p1030

A plaintiff's condition was not legally connected to her injury because the chain of events had been interrupted (1) by a series of circumstances unrelated to defendants' negligence which arose after August 1995 and which caused plaintiff's depressed state (the 'August 1995 collapse thesis'); and (2) by plaintiff's unreasonable failure to submit herself to timeous psychotherapy. The circumstances mentioned under (1) included trial stress preceding the first hearing of the case in August 1995; disappointment at the B postponement of the trial; excessive drug treatment; threats by plaintiff's ex-husband to take their child away from her; the stress of having to prepare for the case again while under the influence of drugs; financial pressures; disappointment when the trial was once again postponed to April 1996; and problems between plaintiff and her family. It was common cause that the increase in medical investigations preceding the first trial date and the subsequent postponement thereof caused a decline in plaintiff's psychological well-being.

The Court pointed out (at 1038C/D-F/G) that it was trite law that psychological sequelae could form the subject of a damages claim, reiterated the essential principles C governing the question of causation (both legal and factual) (at 1039F-1041D) and, after analysing the evidence,

Held, as to defendants' 'August 1995 collapse thesis', that it appeared from the evidence that plaintiff suffered from inherent personality defects which made her emotionally vulnerable to any physical injury that undermined her self-esteem, and that D it could therefore have been expected that her emotional healing would be slower than normal. (At 1044D-I/J, paraphrased.)

Held, further, that the expert evidence that the injury suffered by plaintiff had been 'debilitating over a protracted period' meant that the psychological sequelae had been present from the time of the injury until the first trial date. This conclusion refuted the thesis that her symptoms were due to trial stress and the other post-August 1995 E stressors referred to, and was supported by evidence that plaintiff had gone to several doctors with various stress-related complaints from the period after the burning incident until the time of the first trial date. Given her immature personality, the nature of plaintiff's injuries made it probable that she had suffered continuous mental anguish throughout the period leading up to the August 1995 court case. (At 1046E-F/G and 1046J-1048A/B, paraphrased.)

Held, further, that trial stress or 'compensation neurosis' could not by itself break the chain of causality between defendants' negligence and plaintiff's depressive disorder. F (At 1048A/B-G, paraphrased.)

The dictum in Moehlen v National Employers' Mutual General Insurance Association Ltd 1959 (2) SA 317 (SR) at 319H-320C applied.

Held, further, that plaintiff's condition was justifiably linked to the first defendant's negligence: the depressive disorder was not harm of an altogether different kind from G that normally expected after an injury of the kind suffered by her. In essense her vulnerability stemmed from the weakening effect which pre-existing personality traits had on her ability to withstand trauma. In the emotional and psychological sense, hers was a typical 'thin skull' case. (At 1048G-1049A/B.)

Held, further, that in cases where psychological sequelae follow physical injury (that is, where the person concerned was a 'primary victim'), there was less likelihood of H limitless liability and therefore greater scope to include liability for psychological sequelae which were further removed from the original negligent conduct. (At 1049B-C.)

Held, further, that the perspective brought by hindsight in regard to the respective influences of the stressors which played a part in the August 1995 collapse were I accordingly irrelevant. Plaintiff was a primary victim of defendants' negligence. In terms of the thin skull rule defendants were liable for all forms of nervous shock and psychological trauma following plaintiff's injury, the lesser as well as the more serious, including her August 1995 collapse. (At 1049H/I-1050H, paraphrased.)

The dicta in Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) at 777F-G; Page v Smith [1995] 2 All ER 736 (HL) at 767 in fine; and Masiba and Another v Constantia Insurance Co Ltd and Another 1982 (4) SA 333 (C) at 342D-F applied.

Held, further, as to plaintiff's alleged unreasonable failure to submit to timeous psychotherapy, that the question arose whether this alleged negligence was to be regarded as contributory negligence or as a novus actus interrupting legal causation. 'Fault' J

1996 (4) SA p1031

A as used in s 1 of the Apportionment of Damages Act 34 of 1956 was wide enough to encompass both negligence contributing to the occurrence of the harmful event and negligence affecting the nature and extent of damages suffered, even where defendant's negligence was the sole cause of the harmful event. (At 1051C-H.) B

The dicta in South British Insurance Co Ltd v Smith 1962 (3) SA 826 (A) at 835-6 and Union National South British Insurance Co Ltd v Vitoria 1982 (1) SA 444 (A) at 456D and 458B applied.

Held, further, that a distinction had to be drawn between the parties' conduct before and after the harmful event: in a plaintiff's case only pre-delictual negligence could lead to a reduction of his damages under the Apportionment of Damages Act 34 of 1956 ('the Act'), while post-delictual negligence bore on legal causation and could be regarded as a novus actus which sufficiently interrupted the chain of causality to absolve defendant from liability. The issue of plaintiff's alleged negligence accordingly had to be viewed in terms of legal causation, not contributory negligence. (At 1051I-1052G.) C

Held, further, that it appeared from the evidence that the possibility of psychotherapy and what it could mean to her was never properly discussed with plaintiff. It could not therefore be said that she had...