Roberts, NO v Northern Assurance Co Ltd

• Jurisdiction: South Africa
• Judge: Burne J
• Judgment Date: 24 September 1964
• Citation: 1964 (4) SA 531 (D)
• Court: Durban and Coast Local Division

Burne, J.:

On 28th June, 1962, David Roberts (to whom I propose to refer throughout as 'David') was injured in a serious motor collision. At the time, David was just over 15 years of age, he having been born on 20th A June, 1947. The collision caused him very severe injuries. He required medical attention and hospitalisation. His injuries not only caused pain and necessitated surgical treatment, but also left disastrous results in so far as his future is concerned. The present action is one in which the plaintiff, who is David's father and natural guardian, sues in two B capacities. In his personal capacity, he claims, as special damages for medical expenses, the sum of R1,405.34, and in his capacity as David's father and natural guardian, he claims the sum of R40,000 as general damages suffered by David. At the trial, the defendant admitted liability for such damages as might be proved. In view of the fact that special damages were agreed at R1,405.34, the only issue at the trial was the amount to be awarded as general damages.

C Before I deal with the effect of the collision on David and on his prospects for the future, I should give some description of him as he was and his prospects as they were before the collision. The evidence on this part of the case was provided by David's parents, who are now D divorced, and also by two of David's erstwhile school-teachers, Mr. Brammer and Mr. Goodwin. The evidence of these witnesses was not seriously challenged. Each witness impressed me as being entirely honest, truthful and reliable. I see no reason to reject anything said by any of them. To a large extent, the evidence of these witnesses was E supported by various pre-accident photographs of David and also by an examination paper in arithmetic, together with David's answers thereto and the marks obtained by him. The result of the examination was that David obtained a 79 per centum pass.

As far as his appearance is concerned, the evidence shows David to have been a normal, healthy boy, well-made and with a pleasant, cheerful F countenance that suggests a warm and charming personality. As far as abilities are concerned, the evidence shows that David was good on the sports field at football, cricket and athletics. At his school work, he was described by Mr. Brammer, who was his form master at Newcastle School in 1961, as being 'more or less average', but above average at arithmetic, which was his best subject. Mr. Brammer said that David's G work had improved in the second term of 1961 and that he had passed in the advanced stream of pupils. Mr. Brammer was of the opinion that David had the ability to pass the matriculation examination and, had he kept at his work, would have passed it. Much the same views were expressed by Mr. Goodwin, the headmaster of Eshowe High School, where David was a H pupil in 1962 up to the time of his accident. Mr. Goodwin taught David mathematics. He said that David had come to the school at the beginning of 1962 with a record of an unhappy home life background, but that he seemed keen to do his best and was amenable to discipline. He expressed the view that he would have expected David to pass the matriculation examination, in the advanced stream, in 1965. As far as David's personality and his disposition are concerned, the plaintiff described David as being kind, quiet, well-mannered and very likeable. David's mother, Mrs. Roberts,

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said that she and the plaintiff had separated in 1958 and had been divorced in March, 1961. The children of the marriage were David and his twin brother Arthur and two daughters who were born in December, 1951, and June, 1955, respectively. There had been an unhappy atmosphere in A the home which had its effect on the children. Despite this, she said that David had been a wonderful son with a wonderful sense of humour. He was good, considerate and polite and also helpful to her with the younger children and with the work in the home.

As far as David's future prospects at the time of the collision are concerned, it was implicit in the evidence of his parents that they B would have kept him at school until he had passed the matriculation examination. The plaintiff said that he would not have allowed David to take up a trade. he had in mind David being employed in office work in the accountancy line, especially in view of his proficiency at book-keeping. David's mother said that she also would not have allowed him to take up a trade. She had hoped and wished that he would become an C accountant. She wanted to see him placed with the Durban Corporation and she said that she would have encouraged him to do part-time study.

From the evidence that I have summarised above, it is, I consider, reasonable to conclude that at the time of the accident there was a strong balance of probability that David would have passed the D matriculation examination in 1965 and that he would then have secured employment of a clerical nature. He would, I consider, have entered some large establishment, such as a bank or the Durban Corporation, where his proficiency at figures and book-keeping would have been of great E assistance to him. As far as his working life is concerned, he had before him the future prospects of any normal, healthy, matriculated youth who is prepared to apply himself to his work in an endeavour to improve his position with the passing of the years.

As far as David's private life is concerned, I do not think that one can really say more than that his health, looks and future economic prospects were such that there was, at the time of the accident, no F reason to think that his chances of marriage, of having children, of owning a home and of participating in both the joys and sorrows of life were any different from those of the average matriculated youth of his own age.

G The pleasant and agreeable prospects which lay before David, and which I have attempted to described above, were rudely put an end to by the terrible tragedy which occurred when he was involved in the collision. The immediate consequences were that he received severe lacerations of the face and thigh and that he suffered a depressed fracture of the frontal part of the skull. These injuries naturally caused pain and H shock and necessitated hospitalisation and surgical treatment. Up to a point, it can be said that David recovered from his injuries. He can walk and talk and his general health is good. But the injuries have left permanent defects and disabilities. These will be set out below in greater detail. For the present, I mention that David has been left with gross and unsightly scarring of his face and thigh, that he has permanently lost the sight of his left eye and that he has suffered brain damage which has resulted in a disastrous change of personality and has

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inordinately reduced his prospects of enjoying the ordinary amenities of life.

From the time of the collision until the end of David's hospitalisation A period, he naturally suffered pain, shock and loss of amenities of life. But, in my judgment, this aspect of the case is of comparatively minor importance. The relevant passage from the report of Dr. Mendelow, which was accepted by both counsel as being correct in regard to facts and opinions expressed in it, is as follows:

'This boy was comatose for at least ten days after his injury. He was transferred from Eshowe to Wentworth Hospital, Durban. The Wentworth Hospital admission notes read:

B 'On examination: Young male patient, unconscious.'

David was therefore unconscious for at least ten days. Any physical pain resulting from his injury would have been maximum during the first ten days, but by virtue of his unconsciousness, such pain would not have been registered. Thereafter physical pain was probably moderate for a period of perhaps one month, and thereafter probably of minor consequence. At present he is not complaining of headaches. He may have C experienced moderate pain for perhaps one week after his second surgical procedure for repair of the bone defect.'

According to Sister Hartman, David was in hospital for about two months. According to her, David was in a certain amount of pain, but for a substantial time he was either unconscious or comatose. Furthermore, he D received drugs to ease the pain. His progress was retarded to some extent by reason of his developing a lung abscess which necessitated the insertion of a tube into his lung.

I pass next to the question of scarring and disfigurement. Certain photographs were put in. These show the scars and also the depression in E the forehead. It was agreed by counsel that in appearance David had somewhat improved since the photographs were taken, and he was brought to my Chambers for about five to ten minutes in order that I should observe his appearance and compare it with the photographs. It is true that his appearance is not as unsightly as is shown in the photographs but, in my judgment, the scars have unquestionably wrought havoc with F David's looks. The depression of the forehead is now hardly noticeable, but the scars, stretching from the left corner of the mouth across the left cheek, are most unsightly. Furthermore, there is a pronounced droop of the left eye. The overall effect seems to me to be that the previous appearance of cheerfulness and attractiveness has become converted to G one of despondency, dullness and unattractiveness. As to the scar on the thigh, the photograph reveals it to be a fairly long scar which, like all scars, is unsightly. But, even to a person who would be in ordinary circulation amongst his fellows, it is not a scar which, in my judgment, would call...