Reyneke v Mutual and Federal Insurance Co Ltd

• Jurisdiction: South Africa

Reyneke v Mutual and Federal Insurance Co Ltd
1991 (3) SA 412 (W)

1991 (3) SA p412

Citation	1991 (3) SA 412 (W)
Court	Witwatersrand Local Division
Judge	Claassen J
Heard	March 4, 1991; March 5, 1991; March 6, 1991; March 7, 1991; March 8, 1991; March 11, 1991
Judgment	March 19, 1991

Flynote : Sleutelwoorde B

Negligence — Action for damages — For bodily injuries — General damages — Victim in permanent vegetative state — Whether general C damages to be awarded where victim not aware of any suffered loss — Distinction drawn between pain and suffering and loss of amenities of life — Court to follow subjective approach in first category and damages dependent on extent to which victim experienced pain and suffering — Objective approach to be adopted in second category and D damages to be awarded whether victim aware of such loss or not — Court has discretion to make separate awards in respect of each category — Functional approach Court may apply in computing damages for loss of amenities of life set out.

Headnote : Kopnota

The plaintiff, in his personal capacity and in his capacity as father E and natural guardian of his daughter, S, sued the defendant for damages resulting from a collision between a motor vehicle insured by defendant and S. The latter had sustained head injuries in the collision which caused her to lapse into a permanent vegetative state, ie she was unaware of all her bodily functions, blind, mute, deaf and with no prognosis of any recovery of any of these faculties. Only the quantum of damages was in dispute. The Court, on the basis of evidence given by F various specialists, estimated the life expectancy of S at seven and a half years. The award of general damages raised the question of whether a Court should award any general damages in circumstances where the patient was in a permanent vegetative state and thus not aware of any suffered loss. The Court set out the South African approach to the award of general damages in cases where the victim was either fully or partially unconscious of his loss, as follows:

(1)

First of all, a distinction is made between (a) general damages G for pain, suffering, mental anguish, fear, anxiety etc, on the one hand, and (b) general damages for loss of amenities of life, reduced expectation of life, disfigurement etc on the other.

(2)

In making an award for category (a), the Court adopts a subjective approach in determining an amount of damages. Such amount, if any, will depend on the extent to which the victim can subjectively feel or experience pain, fear, anxiety, etc. If, due to the victim's condition, he/she is insensible to pain, H fear, anxiety, etc, then no harm has been done which is compensable by any award of damages. If the victim is capable of experiencing pain and suffering in any way then an award of damages should be made.

(3)

In making an award for category (b), the Court adopts an objective approach in determining the amount of damages, that is it awards damages for loss whether the victim is aware of such loss or not. In awarding damages for loss in this category, the Court may (but is not obliged to) take into account as one of I the factors influencing the award, the so-called 'functional approach' whereby the amount of damages may be increased or decreased depending on: (i) the extent to which the money so awarded can be utilised to benefit the victim in alleviating his/her lot in life; and/or (ii) the extent to which such money will exclusively benefit the victim's heirs.

(4)

Although differing approaches apply to categories (a) and (b) for the purposes of computing appropriate damages, the Court is J not obliged to make separate

1991 (3) SA p413

A awards in respect of each category. It has a discretion in this regard. It can either make separate awards for each category or it can make one composite award in respect of general damages.

Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484 (W) followed.

The Court held, as regards the first category of damages in the instant case, that S did experience limited pain sensation and awarded R6 000 under this head of damage. As regards her loss of amenities, the Court was of the opinion that an award would redound to the benefit of S B either directly or indirectly, in view of the devotion of her family to her care and well-being. The Court, bearing in mind that S was 16 years old when the accident happened, awarded an amount of R10 000 for reduced life expectancy, R50 000 for loss of amenities of life and R127 634 for past and future loss of earnings. The Court accordingly awarded damages to plaintiff in an amount totalling R198 605,75. C

Case Information

Civil trial in an action for damages. The facts appear from the reasons for judgment.

G M Israel SC (with him L B H Tonkin) for the plaintiff.

J N W Barkhuizen SC for the defendant.

Cur adv vult.

D Postea (March 19).

Judgment

Claassen J:

The plaintiff is the father of a minor daughter, Suzette Analine Reyneke, who was born on 8 July 1970. He sues the defendant E company both in his personal capacity and in his capacity as father and natural guardian of Suzette. The claim arises out of a collision which occurred on 9 October 1986. Suzette was on roller skates in Lombard Street, Klerksdorp when the vehicle, which was insured by the defendant company, collided with her. The defendant has conceded the merits of F this case and only the question of the quantum of damages is in dispute.

Since the injury Suzette has been lying in the surgical ward, No 6, at the Klerksdorp hospital. Suzette sustained various minor injuries, viz a fractured jaw, a fracture of the metacarpal of her hand, multiple rib fractures and fractures of both knees. For all practical purposes these minor injuries have healed and are not relevant to the present dispute. G However, as a result of a major head injury, Suzette is in a permanent vegetative state, ie she falls into the class of cases known as 'cabbage' cases. She is unaware of all bodily functions, blind, mute, deaf and there is no prognosis of recovery of any of these faculties. The brain injury has caused prolonged loss of consciousness and haemorrhage in the deep seated ganglial areas of the brain. As a result H of this head injury she is 100% disabled. She is fed by a naso-gastric tube and her urine is drained by an indwelling catheter. She responds to pain by decerebration posturing. There is a well-marked cough reflex on tracheal pressure. Her pupils are large and do not respond to light. In fact she is blind. Her primary reflexes are still present but she has no spontaneous movement. She cannot speak. She breathes spontaneously. I There are minor pressure sores which have healed on both pinnae of her ears. Her bowels are evacuated either spontaneously or with digital help two or three times a week in bed. There have been episodic chest and bladder infections but these usually clear up within two to three days and in a few instances after approximately nine days. Suzette is J emaciated and has lost approximately

1991 (3) SA p414

Classen J

A 16 kilograms in weight since the date of the collision. At that time she weighed approximately 55 kilograms, whereas now she only weighs 39 kilograms. At the time of the collision she was 16 years of age and is therefore at present 20 years old. She will be bedridden for the rest of her life.

B In medical terms her condition is described as being a Persistent Vegetative State or PVS after a definition by Jennett and Plum made in 1972. A brain scan shows extensive loss of cortex and diffuse atrophy. She has been in a coma since the collision. The Persistent Vegetative State described patients with irreversible brain damage who, on recovery from a deep coma, pass into a state of seeming wakefulness and reflex C responses but never return to a cognitive sapient state. It is the result of destruction of the cerebral cortex of the brain but with sufficient preservation of the brainstem to sustain the vegetative functions - respiration, circulation, gag-reflex etc. The PVS is distinguishable from brainstem death where the patient is kept alive by D mechanical respiratory support which, if withdrawn, will result in death.

The PVS has been described in the popular press as 'the living death'. I gather from Dr Froman's medico-legal report that a mother of a teenager who lived for six years in a vegetative state after a head injury, said in a British television documentary that her son 'had died E at the roadside but that the funeral was six years later'. Dr Froman's medico-legal report describes the state as follows:

'The vegetative state, as defined by Jennett and Plum implies that there is no cerebral cortical function as judged behaviourally.

"Patients in this state have quite a wide range of responses including eye opening with sleep and wake rhythms, and sometimes the ability to F follow with the eyes; they usually make posturally reflex adjustments with the limbs and their hands may show a grasp reflex. These responses are often interpreted by relatives as signs of returning to consciousness and grounds for optimism regarding further recovery. But such responses can all occur at the sub-cortical level, and these patients never speak, nor do they make any response that is psychologically meaningful." '

G I am told by Dr Froman that the Glasgow Outcome Scale for brain damage recovery defines the process of recovery in five stages:

1.

Death, which is the worst state.

2.

The persistent vegetative state.

3.

Severe impairment.

4.

H Moderate impairment.

5.

Good recovery.

According to this scale of recovery the PVS is the worst condition short of death. An instructive article on the behaviour of patients in the vegetative state entitled 'Hypoxic-ischemic brain...