Ocean Accident and Guarantee Corporation Ltd v Koch

• Jurisdiction: South Africa
• Judge: Beyers JA, Van Blerk JA, Ogilvie Thompson JA, Holmes JA and Wessels JA
• Judgment Date: 09 May 1963
• Citation: 1963 (4) SA 147 (A)
• Hearing Date: 22 March 1963
• Court: Appellate Division

A Beyers, J.A.:

On the 26th november, 1959, the respondent was sitting at the steering wheel of a stationary motor car when it was struck from behind by another motor vehicle. As a result of the collision he sustained an injury to his neck. Some four months later he suffered a coronary thrombosis. The respondent thereupon instituted an action in the East London Circuit Local Division in which he claimed substantial B damages from the appellant company, as insurer of the other vehicle under the provisions of the Motor Vehicle Insurance Act. The appellant conceded, at an early stage of the proceedings, that the collision had been caused through the negligence of the driver of the insured vehicle. It disputed the amount of damages claimed, however, and paid into Court an unspecified sum of money in full satisfaction of the respondent's claim.

C The respondent averred in his declaration that as a result of the injury to his neck he suffered considerable cervical nerve root irritation, and that this in turn adversely affected his nervous system and induced a state of tension and apprehension which culminated in the coronary thrombosis.

D After hearing evidence the trial Court (CLOETE, A.J.) found in favour of the respondent on each of these issues, and awarded him damages totalling R15,423.91.

In the appeal which is now before this Court, his award is contested only in so far as it relates to damages awarded in respect of the E coronary thrombosis.

In terms of a notice filed with the Court, the appellant has stated that it does not challenge:

(a)

The findings of the Court a quo that the respondent suffered an injury to the neck in consequence of the collision;

(b)

F The finding of the Court a quo that the respondent suffered cervical nerve root irritation in consequence of the collision;

(c)

The special damages awarded to the respondent arising out of the said neck injury and cervical nerve root irritation;

(d)

The general damages which this Court finds to be proper for the said neck injury and cervical nerve root irritation.

G The learned trial Judge found that

'the nervous tension and worry of the plaintiff subsequent to the accident contributed to the attack of coronary thrombosis suffered by him'.

The suggestion was made in the Court below that the respondent had H exaggerated his mental condition consequent upon the neck injury in order to provide a foundation for the finding that the coronary thrombosis was a direct result of that injury. The trial Court rejected this suggestion, but since it has been persisted with in this Court I find it necessary to deal in some detail with the evidence concerning the state of the respondent's nerves after sustaining the neck injury. I do so not so much in order to discount the suggestion of a 'compensation neurosis', but because I consider the degree of the 'nervous tension and worry' to be an important element in the case.

Beyers JA

[The learned Judge then dealt with evidence relating to the plaintiff's misfortune and certain medical evidence. He then proceeded.]

It was on the strength of this evidence that the trial Court came to the conclusion that

A 'there can be little doubt but that as a direct result of the accident the plaintiff has become subject to a heightened anxiety state and tension which did not exist in him previously'.

In my opinion the evidence fully supports this conclusion. There can also be little doubt but that the respondent suffered the nervous strain B and tension throughout the whole of the period intervening between the collision and the heart attack.

I come now to consider the crucial question whether a heightened anxiety state can, and in the case of the respondent did, cause a coronary thrombosis.

The onus, naturally, was upon the respondent to establish both C propositions on a balance of probabilities.

The trial Court held that the respondent had succeeded in doing so.

As to the first question, whether a heightened anxiety state can be said to be a cause of coronary thrombosis, there was sharp conflict in the opinions expressed by Dr. Burton, the physician specialist referred to D above, and Dr. Viljoen, a physician specialist called as a witness by the appellant.

[The learned Judge then analysed the evidence of these specialists and continued.]

I am inclined to agree with the learned trial Judge that the opinion of E Dr. Burton, supported as it is by the opinion of Paul Wood, is in the circumstances more acceptable than that expressed by Dr. Viljoen. Whether it is sufficiently acceptable to be elevated to the status of proof, on a balance of probability, of the viewpoint stated, is another matter. I rather think that it is. In view, however, of what follows in this judgment, I do not find it necessary to commit myself in this regard. I shall assume in favour of the respondent that a heightened F state of anxiety can cause a coronary thrombosis, whether the patient be predisposed to a heart attack or not.

I am not satisfied, however, that the respondent has established, on a balance of probabilities, that in his case the cause of the thrombosis G was a heightened anxiety state. I say this with due respect to the diagnosis of Dr. Burton, who has had a long doctor/patient relationship with the respondent. I agree with the learned trial Judge that in an appropriate case the existence of such a relationship would be helpful to the physician who has to make the diagnosis. In the particular circumstances of this case, however, I am unable to give my unqualified assent to the view expressed by the learned Judge that

H 'where one is faced with numerous factors which could possibly contribute to or cause a myocardial infarction in a particular patient the diagnosis as to which of those factors are importance and causative ones is a matter in which actual clinical contact with the patient is all important'.

Clinical contact with the patient would undoubtedly be, and in this case was, of considerable importance in assessing the degree of the patient's state of anxiety. But that matter is no longer in issue: it is accepted that he suffered acute anxiety. It may also readily be conceded that such contact was important in assisting Dr. Burton to

Van Blerk JA

eliminate some of the many suspected causes of thrombosis. Thus, e.g., he was able to eliminate smoking as a possible cause, and high blood pressure, and, it would seem (although the evidence is not entirely satisfactory on the point) a high cholesterol level in the blood. He A would also know whether any weight could be attached to the heredity factor. But where all the possible causes of coronary thrombosis are not known to medical science, and the relative importance of the known, or suspected, causes is still a matter of controversy among medical men, the extent to which Dr. Burton has been able to narrow down the field of operative causes in the case of the respondent must necessarily remain a B matter of conjecture. He himself has conceded, in the joint statement referred to above, that

'Numerous factors could contribute toward the development of a myocardial infarction in this case.'

Animal fats in the diet, a high intake of carbohydrates, age, obesity, exertion, are mentioned in the literature on the subject as possible C causes of coronary thrombosis. There may be other causes which are not known to medical science or which, although known, have not been mentioned in the opinions placed before the Court. No authority has been quoted which suggests that of all the suspected causes, a heightened anxiety state is a predominant cause of thrombosis, or even a major or D common cause thereof. It is merely recognised by a few of the authorities as something which may cause a thrombosis.

In the present state of medical knowledge the heart attack suffered by the respondent might equally have been caused by overweight (the respondent is stated to have been obese); or by advanced age coupled E with the diseased state of his arteries (Dr. Viljoen has stated that the incidence of coronary thrombosis among persons in the respondent's age group is high); or by some other agency or combination of agencies wholly unconnected with the state of the respondent's nerves.

In my opinion it cannot therefore be stated with the necessary degree of certainty that in this case the heightened state of anxiety was the F cause of the respondent's coronary thrombosis. One may have a grave suspicion that the heightened state of anxiety was a contributing factor, but mere suspicion, although grave, is not sufficient to discharge the onus of proof (cf. Cooper and Nephews v Visser, 1920 AD 111 at p. 117).

G It follows from the above that the Court a quo ought not to have awarded the respondent damages in respect of the coronary thrombosis suffered by him, and that the appeal must accordingly be allowed with costs.

I have read the judgment of my Brother OGILVIE THOMPSON and do not wish to add anything to what he has said on the question of damages. I agree H ...