Ncubu v National Employers General Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Galgut J
• Judgment Date: 01 October 1987
• Citation: 1988 (2) SA 190 (N)
• Hearing Date: 28 August 1987
• Court: Natal Provincial Division

Galgut J:

The plaintiff is the mother and natural guardian of her son Can. In that capacity she sues the defendant for compensation in terms of the Compulsory Motor Vehicle Insurance Act 56 of 1972, the defendant having been the insurer in terms of the Act of a school bus, driven by one Sukdeo, which ran Can down in an incident on a road which runs through some cane-fields near Stanger on 29 February 1984. At that stage Can was not quite four years old, having been born on 12 April 1980.

I [The learned Judge then analysed the evidence and continued.]

I hold therefore that Sukdeo was negligent, and that his negligence caused Can's injuries. It is not in dispute that Can was culpae incapax at the time, and in the circumstances I therefore hold that the J defendant is liable for all the damages which Can may have suffered.

Galgut J

A Can was taken to the Stanger Hospital a short while after the collision, and was attended to by Mr Schweitzer, an orthopaedic surgeon who testified on the plaintiff's behalf. Can was seen and treated by Mr Schweitzer on a number of occasions thereafter, most recently on the first day of the trial, namely 26 August 1987. Mr Schweitzer also drew B two medico-legal reports which formed the basis for the evidence he gave. The first was exh 'C' 1 - 9, and the second exh 'C' 10 - 12. His evidence discloses the following. The injuries which were present when Can was brought to him on 29 February 1984 were to his legs. As a result of his left leg having been crushed, there was a traumatic below knee C amputation of the left leg, and all that held his leg together was a skin bridge. The tibia was in fact amputated a couple of centimetres below the knee. The wound disclosed exposed bone and soft tissue, and was deeply ingrained with dirt. The skin of the distal thigh was partly degloved. On the right leg there was a degloved area just above the medial malleolus, which measured some 10 cm by 6 cm, and which exposed certain soft tissue and nerves. This wound was also deeply ingrained D with dirt. An operation was performed whereby the amputation of the left leg was completed and the wounds cleaned and debrided.

Between that day and the end of March 1984 four further operations were carried out, mostly to do various skin grafts and debridements, and to change the dressings. The skin grafts principally involved building E up the covering over the stump of the amputated left leg, since the soft tissue covering the stump was insufficient. Donor skin was taken from Can's right thigh for the purpose of the various skin grafts.

Prior to his discharge from hospital on 25 May 1987, Can was fitted with a lower left leg prosthesis. Since then he has been seen by Mr F Schweitzer on a number of occasions for the treatment of ulcers on the left knee, and for adjustment to the prosthesis. During May 1987 the prosthesis was replaced by a new one.

Mr Schweitzer's evidence is that Can has adjusted well to the prosthesis. Can was brought into Court for a short while at one stage, and it is clear to me that he moves easily and well. Indeed he even G appears to be fairly agile. I only saw Can for a very short while, but my observations are borne out by Mr Schweitzer's opinions in regard thereto.

As a result of his injuries and their consequences, certain medical and related expenses have been incurred, and further such expenses will be incurred in the future. Furthermore, Can has suffered general damages H resulting from the pain, suffering and discomfort he had endured, from his disablement and disfigurement, from his loss of the amenities of life to which he would otherwise have been used, and from his earning capacity having become reduced.

It is agreed between the parties that the medical and related expenses necessarily incurred prior to the date of trial amount to the sum of R7 I 802,91. There is a dispute between the parties whether these expenses were incurred by the plaintiff in her capacity as mother and natural guardian of Can, or whether they were incurred in her personal capacity. I will return later to this question.

The future medical and related treatment which Can will require in the future falls broadly into four categories. Firstly, there are J consultations

Galgut J

A with doctors. Because of the paucity of tissue over the stump and in other areas of his legs, ulceration is likely to occur from time to time for the rest of Can's life. Ulcers must be dealt with promptly, because a failure to do so will have the serious consequence that further operations will become necessary. In addition, the prosthesis must be examined regularly for the purpose of seeing whether it requires adjustment or repair, because if this is not done further complications B may also occur. For all of these purposes Can will have to consult regularly with doctors.

Secondly, Can will require powder and stump socks for the rest of his life.

Thirdly, for the rest of his life Can will also require to purchase new prostheses and to maintain them. It is clear that Can will at all C times require to be in possession of two prostheses. The reason is that from time to time one will break or require other attention, and if he is not in possession of a spare one he will be unnecessarily incapacitated each time the prosthesis is to be replaced or repaired, D which can take up to about a week at a time.

Fourthly, there is the possibility of a so-called resection operation. The need for this operation, if indeed it becomes necessary at all, arises because, according to Mr Schweitzer, experience has shown that, in the case of growing children, certain of them who have had such amputations develop the complication as they grow that the bone (in this E case the tibia) may grow more rapidly than the tissue covering the stump, which might result in the bone perforating the tissue. In such event a so-called resection operation will become necessary. The parties are agreed that there is a 25% chance of the operation having to be performed, that, if it is performed, it must be assumed that the operation will be carried out when Can is 11 years old, and that the F discounted cost thereof at that stage will be R1 488 (today's cost being R1 540). The parties are agreed that the amount that must be allowed for in this regard is R372, which is 25% of R1 488.

As I have already said, the parties are agreed that the quantum of the medical expenses incurred prior to the trial is the sum of R7 802,91. G The quantum of the necessary future medical expenses after the trial has also been agreed upon between the parties. The total amount, which is duly discounted, amounts to R57 931, which includes the said sum of R372 for the resection operation to which I have referred. As far as the balance of R57 559 is concerned, I have been provided with a document H headed 'Plaintiff's and defendant's quantification of plaintiff's "claims" based upon actuarial calculations' (which has been marked exh 'L') in which, in regard to the other future medical expenses, agreed calculations have been made of the various costs thereof at various stages in the course of Can's future life. From exh 'L' it is clear that about two-thirds of the total cost of the future medical expenses I represent costs which will be incurred between today and the date upon which Can becomes self-supporting.

Before dealing with the general damages, I must pause to deal with the conflicting contentions of the parties in regard to the damages resulting from the past and future medical expenses to which I have referred. The defendant contends that the plaintiff's claim in regard to the past medical expenses cannot succeed at all, and that the claim for J the future

Galgut J

A medical expenses cannot succeed in its entirety. The plaintiff, as I have already said, sues in her capacity as mother and natural guardian of Can, and not in her personal capacity. The plaintiff alleges that all of the said damages which were suffered were suffered by her in her capacity as guardian and not in her personal capacity. The claim is in effect therefore Can's, and not the plaintiff's. The defendant's contention...