Sigournay v Gillbanks

• Jurisdiction: South Africa
• Judge: Schreiner JA, Malan JA, Van Blerk JA, Ogilvie Thompson JA and Van Wyk AJA
• Judgment Date: 10 March 1960
• Citation: 1960 (2) SA 552 (A)
• Hearing Date: 03 December 1959
• Court: Appellate Division

Schreiner, J.A.:

In the judgment under appeal, which is reported with an abbreviated recital of the facts at 1959 (2) SA 11, HENOCHSBERG, J., G awarded the plaintiff £41,351 3s. 5d. as damages for personal injury arising out of a motor car accident which happened on the 27th June, 1954. The defendant, who was the negligent driver of the vehicle in which the plaintiff was travelling, does not on appeal dispute his liability to compensate the plaintiff but he appeals against the amount of the damages awarded.

H The plaintiff was extremely seriously injured. He lost the sight of his right eye, the collar bone and several ribs on his left side were fractured, with a consequent escape of air into the pleural cavity, and, by far the worst of his injuries, his brain was damaged, with the result that his control of the movement of the right side of his body was impaired; he walks with difficulty and uncertainty, his speech is hesitant and slow and his intellect, though otherwise hardly weakened, if at all, operates more slowly than is normal. It is not in dispute that so far as the

Schreiner JA

normal fields of employment are concerned his disability is 100 per cent.

On appeal the item of £1,625 3s. 5d. allowed for medical, hospital and nursing expenses was not challenged. In regard to the item of £4,220, allowed in respect of the cost of an attendant, it was submitted for the A defendant that the amount of £20 per month provided as a wage for the attendant should be reduced to £10. It was pointed out too that for more than six months before the trial of the damages issue the plaintiff had been living alone at an hotel without an attendant. He stated in evidence that the hotel servants were very helpful but, even so, he had experienced falls about twice a week. The plaintiff may well find it B possible for part of his life to save money by dispensing with an attendant, and the attendant may save him some expense in the employment of servants whom he would without the accident in the ordinary course have employed. The attendant will presumably drive his car and look after it. On the whole, however, it seems to me that the award of £4,220 under this item should not be disturbed.

C There remain three items of the award - loss of earnings up to the 5th June 1957, the date of issue of summons (£3,557), estimated loss of future earnings from 5th June 1957 onwards (£21,949) and damages for pain and suffering and loss of amenities of life (£10,000). Of these D items the first two were attacked on the ground that they were based on an uncritical, or insufficiently critical, acceptance by the trial Judge of the evidence of Mr. Forder, the manager of the Estcourt branch of the firm of Tucker and Egeland, estate agents, travel agents and auctioneers, who were the plaintiff's employers at the time of the accident. There are further factors to be considered, namely, the rate E of interest at which the capitalisation of the estimated future earnings should be calculated, what deduction if any should be made on account of income tax and the allowance which is commonly made for contingencies or, as they are sometimes called, the accidents and chances of life. The amount allowed for pain, suffering and loss of amenities was challenged as unreasonably large. Generally, counsel for the defendant argued, the total amount awarded was clearly too much.

F In addition to the difficulties inherent in the assessment of general damages a Court of appeal has the further difficulty of having to decide whether, if it disagrees with the award of the trial Court, such disagreement should lead to a change in that award. The ways of stating G the Appeal Court's problem in cases of this kind vary, some appearing to favour appellants, other respondents. To the judicial summarisations of such statements that are mentioned in Frodsham v Aetna Insurance Company, 1959 (2) SA 271 (AD) at p. 282, may be added the judgment of BIRKETT, L.J., in Rushton v National Coal Board, 1953 (1) Q.B. 495 at p. 500. In particular it is useful, I think, to note the observation H on p. 501 that regard must be had, not only to past decisions awarding general damages, but also to the effect that the present decision might have upon the course of awards in the future. No doubt the same considerations are applicable wherever under the system of precedent any issue has to be resolved by a Court, but it is useful to be reminded that they apply also to the assessment of general damages in the common case of an action based on personal injury.

Schreiner JA

Nothing like a hard and fast rule or definite standard is to be found in a matter so closely linked with the peculiar circumstances of each case, but some guidance is to be derived from the notion that fairness to both A parties is likely to be served by a large measure of continuity in the size of awards, where the circumstances are broadly similar. As was said by INNES, C.J., in Hulley v Cox, 1923 AD 234 at p. 246, a comparison with other cases though never decisive is instructive. I respectively agree in this connection with the statement of ORMEROD, L.J., in Scott v Musial, 1959 (3) W.L.R. 437 at p. 446, that there emerges

B 'a general idea of the sort of figure which, by experience, is regarded as reasonable in the circumstances of a particular case,'

to which general idea a Court of appeal should give regard.

If there has been a marked change in the value of money since earlier, otherwise comparable, awards were made, this should be taken into C account, but not with such an adherence to mathematics as may lead to an unreasonable result (cf. Norton and Others v Ginsberg, 1953 (4) SA 537 (AD) at pp. 541 and 551).

With these considerations in mind, and paying the usual regard to the advantageous position of the trial Court in relation to findings of D fact, this Court must decide upon the figure which it thinks should have been awarded. If this figure differs 'substantially' from the figure awarded, the latter should be altered (Sandler v Wholesale Coal Suppliers Limited, 1941 AD 194 at p. 200). Whether in any particular case a difference is to be regarded as substantial may, of course, be a difficult matter to decide; the probable amount of the costs of appeal might be a factor.

E Before I deal specifically with the loss of earnings items, the relevant facts in connection with the plaintiff's life before the accident must be briefly summarised. He was born on the 3rd May, 1921. As a youth he was good at games but was not a good scholar by examination standards. He failed the matriculation examination in 1938 F and in 1939 obtained a rather poor third class pass. At the beginning of 1940 he entered the employment of a firm of accountants in Maritzburg as a bookkeeper. He was not articled and it does not appear what his salary was. During the three or four months of this employment he studied accountancy, attending part-time classes at the Natal University G College. In May 1940 he joined the army and left the Union on active service in July of the same year. He saw considerable service and from 1942 to 1945 was a prisoner of war. He was discharged from the army in December 1945. For the next 5½ years he worked as a bookkeeper in an Estcourt butchery, in which he had a one-third interest, inherited from H his father. His salary during this period was £35 per month. He did some work on a correspondence course in book-keeping but did not obtain any certificate or qualification as a result. Following upon a quarrel with his guardian, who apparently managed the butchery, he left this employment in June 1951, and after an interval worked for a month or two for his younger brother, who owned a printing works and stationery retail business in Estcourt. On the 1st November, 1951 he entered the employment of Tucker and Egeland. He took the place of a qualified accountant who had proved

Schreiner JA

unsatisfactory in respects which did not fully appear from the evidence. He had apparently let the books get badly behind. The firm's unhappy experience with him was given by Mr. Forder as a reason for not trying to get a qualified accountant to take over what Mr. Forder called the A secretarial work after the plaintiff's accident. It was this work - doing the books and income tax returns of other persons and firms - which Mr. Forder said that the plaintiff was primarily engaged to do, though he had also to do those of Tucker and Egeland's books that were kept in Estcourt. Mr. Forder, who like the plaintiff grew up in Estcourt, had known him personally from their school days and he was an B old friend of the plaintiff's family. He said that he approached the plaintiff because he knew his character and his reputation of being an excellent bookkeeper and secretary. The only real secretarial work, however, which the record shows that the plaintiff had theretofore done was for the local cricket club, though he had drawn up balance sheets C for the other sporting bodies in the town. The plaintiff was a popular and successful sportsman and this no doubt was a factor in leading Mr. Forder to expect the so-called secretarial side of the firm's work to prosper and expand while the plaintiff was in charge of it. The first eight or ten months of the plaintiff's work with the firm was principally spent in getting its own books up to date, but thereafter D some progress was made in the direction of keeping books for other firms. But up to the date of the accident this work was only being done for a few firms - about seven according to Mr. Forder - and for the most part the work only consisted of writing up the clients' books once a quarter.

E I turn now to the two items of £3,557 and £21,949. In each case the amount awarded was the full amount claimed, the learned Judge considering that the plaintiff, had his claims been larger, would have been entitled to...