Jonathan v General Accident Insurance Co of South Africa Ltd

• Jurisdiction: South Africa
• Judge: Brand AJ
• Judgment Date: 13 August 1992
• Citation: 1992 (4) SA 618 (C)
• Hearing Date: 28 July 1992
• Court: Cape Provincial Division

Brand AJ:

Introduction

On 29 January 1988 a motor vehicle collided with plaintiff, who was a pedestrian at the time. Defendant was the appointed agent, within the D meaning of the Motor Vehicle Accidents Act 84 of 1986 ('the Act'), in respect of the motor vehicle concerned. Plaintiff instituted action in terms of the Act against defendant for damages in consequence of the severe head injuries she sustained in the accident. This action was instituted on 4 December 1990.

E In its plea defendant, inter alia, raised the special defence that plaintiff has no locus standi in this matter in that, as a result of her defective mental condition, she is unable to understand and appreciate the nature, effect and implications of the legal proceedings in her action. At the conference in terms of Rule 37, the parties agreed that the only issue F which falls to be determined at this stage is the issue relating to plaintiff's locus standi.

The evidence

At the trial, defendant assumed the duty to begin without expressly conceding that it bears the onus at the end of the day. Five witnesses were called on behalf of defendant, namely a neurosurgeon, Dr Paul Cluver; G two clinical psychologists, Mr Reyner van Zyl and Dr Richard Oxtoby; a psychiatrist, Dr Chris George and Dr Oxtoby's psychometrist, Miss Martine van der Westhuizen. Thereafter, two expert witnesses, a neurosurgeon, Dr Shafik Parker and Ms Lourenza Fourie, testified on behalf of plaintiff. Plaintiff herself was not called as a witness.

According to Dr Cluver, plaintiff suffered a severe head injury, H resulting in widespread damage to her brain which, in turn, caused functions of the brain to be affected to a greater or lesser extent. Inter alia plaintiff suffered frontal lobe damage. The function of the frontal lobe he described as follows:

'The frontal lobe is the part of the brain which distinguishes us from I other primates. It is in the frontal lobe that the very important functions of judgment and insight are situated. And that important function of constraint or inhibiting emotional responses.'

In addition to frontal lobe damage plaintiff also suffers from a severe impairment of her memory which, incidentally, is not a function of the J frontal lobes, but a function of the temporal lobes.

Brand AJ

A In Dr Cluver's opinion, the result of the damage to plaintiff's brain is that she is not capable of running her daily life. For instance, she is unable to do her daily shopping since she is unable to calculate her small change at a shop or to prepare a shopping list or a menu. She is therefore precluded from resuming her pre-accident employment as a domestic assistant or a low level factory worker. B

As to the question whether plaintiff will be able to understand the legal proceedings in her action against defendant, Dr Cluver believes that she will be able to understand these proceedings at a basic level; at the level of the television programmes for children which she enjoys. In his C opinion she is, however, totally unable to appreciate the intricacies of legal proceedings. In this regard he expressed himself as follows:

'I do not know what is legally required to be able to consider litigation, but I would have thought that it requires a greater degree of understanding and insight than is required to plan one's shopping list or one's income.'

D According to Mr Van Zyl, plaintiff achieved a score of 54 on the Wechsler intelligence test. She is also handicapped by a severe memory defect, problems with concentration, an inability to keep a line of thought, as well as emotional lability. He agreed with Dr Cluver that plaintiff is able to understand legal proceedings in a very basic and E unsophisticated way. She is, however, unable to understand these proceedings at any sophisticated level and she is equally unable to make any informed or reasoned decision. If she were to be asked by her attorney whether a settlement offer of R100 000 should be accepted, she would be able to say 'yes' or 'no'. This, however, in his view, would only be 'an instinctive gut reaction' as opposed to 'an intelligently motivated' response.

F Psychometric tests were also performed on plaintiff by Dr Oxtoby's assistant, Miss Van der Westhuizen. From the result of these tests it appears that plaintiff has an IQ of 62 which, according to Dr Oxtoby, puts plaintiff in the range of 'mild mental retardation'. As a result of this lack of intellectual capacity, plaintiff's comprehension is severely G impaired and she is unable to process more than a very limited amount of information at any one time and becomes 'flooded' easily .

Dr Oxtoby also expressed the view, which is shared by all the experts on both sides, that plaintiff suffered extensive and widespread damage to her H brain. The consequences of this damage can therefore, in Dr Oxtoby's view, not be limited to severe limitation of intellectual functioning. Apart from this defect, plaintiff's memory is also severely compromised. In particular, her short-term memory is described by him as 'disastrously

poor'. He also shares the view, which is held by the other experts, that plaintiff suffered frontal lobe damage.

According to Dr Oxtoby, the I

'frontal lobes are the seat of highest intellectual functioning, the ability to be flexible in one's behaviour, to adapt one's behaviour to particular situations, to assess that one's behaviour is inappropriate and to change that behaviour, to engage in planning, to make hypotheses about the probable results of actions that one undertakes and to make a rational J decision to discontinue certain behaviours and to engage in others'.

Brand AJ

A The consequence of the damage to the frontal lobes, which was also borne out by Dr Oxtoby's clinical examination, is that plaintiff's ability to make rational, informed decisions as well as her ability to control impulsive behaviour, is seriously impaired.

As a result of these mental disabilities plaintiff will, in Dr Oxtoby's view, be unable to process any information conveyed to her by her legal B representatives. If confronted with a settlement offer on the basis of an immediate small cash payment which is substantially less than the value of a certificate for future medical expenses, Dr Oxtoby is of the opinion that plaintiff will accept the immediate gratification of money notwithstanding the fact that it will be to her detriment. In Dr Oxtoby's C view, plaintiff is not able to understand the clauses contained in a release form. In lengthy settlement negotiations, plaintiff will become flooded and lose track. According to Dr Oxtoby, the difference between plaintiff and other unsophisticated litigants is that, unlike these other litigants, plaintiff does not only lack current knowledge. She also lacks the intellectual ability to grasp the issues as well as the ability to D make an informed decision. In his view, the fact that plaintiff refused a settlement offer of R24 000 was not because it was less than the R250 000 (which plaintiff claimed at one stage before the claim was increased, but which she apparently still perceives to be the amount of her claim), but because it was an amount which is different from R250 000. The reason why plaintiff is apparently unaware of the fact that her claim was E subsequently increased to R636 900 is not clear. I accept in her favour that she was not informed of this fact, although this is unlikely.

Dr Oxtoby is therefore of the view that, although plaintiff has enough language ability to follow Court proceedings at a basic and concrete F level, she is mentally unable to play any meaningful role in the litigation and to give any rationally motivated instructions to her legal representatives.

Dr George relied on the psychometric testing of plaintiff by Mr Van Zyl and Ms Fourie and on his clinical interview with plaintiff as the basis for his evidence. In his view, plaintiff suffers from the following mental handicaps:

(a)

G As a result of her impaired memory, she struggles to learn, loses her belongings and easily forgets important dates and information.

(b)

She suffered damage to her emotional functioning which resulted in her emotional blandness and general indifference.

(c)

Plaintiff has impaired concentration and changes spontaneously and H inappropriately from one topic to another.

(d)

She also has difficulty in mental reasoning ability and abstract logical thinking and is unable to do more than very simple arithmetic calculations.

(e)

From the tests done by Mr Van Zyl, it appears that she has an IQ I of only 54, which shows that her intelligence is severely impaired and that she performs intellectually at the level of an eight-year-old child.

Dr George therefore shared the view expressed by the other experts who testified on behalf of defendant, that plaintiff is unable to understand the Court proceedings in any meaningful way...