Southern Insurance Association Ltd v Bailey NO

• Jurisdiction: South Africa
• Judge: Rabie CJ, Wessels JA, Corbett JA, Hoexter JA and Nicholas JA
• Judgment Date: 30 September 1983
• Citation: 1984 (1) SA 98 (A)
• Hearing Date: 14 September 1983
• Court: Appellate Division

Nicholas JA:

On 26 December 1978 Danderine Bailey, who was then two years old, was knocked down by a motor vehicle near Kommetjie in the Cape. She immediately became deeply unconscious. While lying at the side of the road before the ambulance arrived, she had an epileptic seizure. She was taken to hospital and treated in an

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intensive care unit until 5 February 1979. It was only on 29 January 1979 that she regained consciousness. Her progress was slow and it was not until October 1979 that she could leave the hospital and go home.

Her father, Pieter Bailey, instituted an action in the Cape A Provincial Division against the Southern Insurance Association Ltd, the insurer of the vehicle concerned, under the Compulsory Motor Vehicle Insurance Act 56 of 1972. Acting in his personal capacity and in his capacity as Danderine's father and natural guardian, he claimed substantial sums in respect of damages B suffered as a consequence of the accident. Although the defendant initially denied liability, this was admitted at the conference held shortly before the trial in terms of Rule 37 of the Rules of Court.

By agreement between the parties, the plaintiff amended the paragraph of his particulars of claim setting out the damages C to read as follows:

"6 (a) As a consequence of Danderine's injuries, plaintiff has suffered damages in the sum of R13 778 as follows:
(i) hospital and medical expenses	12
(ii) cost of supervision of Danderine until D she attains the age of 21 years	11 766
(iii) cost of appliances to assist in Danderine's daily living	2 000
	R13 778
(b) By reason of the allegations set out in para 5 above, Dande- E rine has suffered damages in the sum of R186 947 made up as follows:
(i) cost of supervision of Danderine after she attains majority	21 368
(ii) estimated future loss of earnings	110 579
(iii) general damages for pain, suffering, shock and discomfort, permanent loss of amenities and permanent disablement	50 000
Alternatively to (ii) and (iii) above, the general damages as stated above but including a lump sum for loss of earning capacity - R160 579;
(iv) cost of appliances to assist in Danderine's living	5 000
	R186 947
Plaintiff claims the said damages in his capacity as father and natural guardian as aforesaid."

H The defendant then admitted liability for the sum of R12 claimed in respect of past medical expenses and furnished to the plaintiff, in both his capacities, an undertaking in terms of para (a) of ss (1C) of s 21 of Act 56 of 1972. This provides that:

"(1C) Where a claim for compensation under s 21 -

(d)

includes a claim for the costs of the future accommodation of any person in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him, the authorized insurer concerned shall be entitled, after furnishing the third party in question

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with an undertaking to that effect..., to compensate the third party in respect of the said costs after the costs have been incurred and on proof thereof."

The effect of this was that item 6 (a) (ii) and (iii) and 6 (b) (i) and (iv) were removed from the area of dispute, and it remained for the trial Court to make an award in respect only A of estimated future loss of earnings and general damages.

At the trial, evidence was given on behalf of the plaintiff by Danderine's mother, Mrs Venus Bailey, by Professor A P Rose-Innes, head of the Department of Neurosurgery at the University of Stellenbosch, and by Mr R J Koch, a practising B actuary. Dr P F de V Cluver, a neurosurgeon who had furnished the plaintiff with a report of his examinations of Danderine on 16 August and 9 September 1980 and 26 August 1981, was not called as a witness.

No evidence was led on behalf of the insurance company.

The trial Judge (Vos J) gave judgment in favour of the C plaintiff and made an order as follows:

"1.

Plaintiff is awarded R12 for past medical expenses in his personal capacity.

2.

R50 000 is awarded for general damages.

3.

In regard to loss of earnings I shall determine the following basis and refer the matter back to the D actuary for the appropriate lump sum calculation: Danderine would in my opinion have earned an amount of R36 a week as at 1981, duly adjusted for future increases due to inflation, from the age of 15 years onwards to the age of 60. This figure is subject to a diminution of 10% for contingencies. Accordingly the actuary is authorised to make this calculation on the E same basis as was done in his last report.

4.

Defendant is to pay plaintiff's costs, including the reasonable qualifying expenses of Prof Rose-Innes, Dr Cluver and the actuary, Mr Koch.

5.

If necessary the parties may approach the Court on any F differences that may arise after the actuary's calculation."

The figure calculated by the actuary on the basis set out in para 3 of the order was R68 696, and there arose no difference between the parties in this regard.

The defendant insurance company noted an appeal against the whole of the judgment and order, excluding the award of R12 in G terms of para 1.

The appeal is therefore in substance one against the awards in respect of "loss of earnings" and general damages.

It is well settled that this Court does not interfere with awards of damages made by a trial Court unless there is "a H substantial variation" or "a striking disparity" between the award of the trial Court and what this Court considers ought to have been awarded; or the trial Court did not give due effect to all the factors which properly entered into the assessment; or the trial Court made an error in principle, or misdirected itself in a material respect.

In his final report dated 18 September 1981, which was confirmed in his evidence at the trial and was not seriously challenged in cross-

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examination, Prof Rose-Innes expressed the following opinion regarding Danderine Bailey:

"At this point about two years and nine months after injury I would make the following comments.

A 1. My opinion of the nature and severity of the brain injury in this head injury remains unchanged."

(In the opinion referred to it was stated that:

"1. The child undoubtedly suffered a severe head injury in this accident, with severe widespread brain damage more marked on the right side of the brain. This opinion is based on the severity and prolonged duration of unconsciousness after B the initial head injury and the slow incomplete recovery since that time."

"2. The functional defects that have resulted from this brain injury remain, in summary, very severe intellectual and emotional retardation, and an inability to control her bladder and bowel functions, which point to the cerebral hemispheres; further there remains generalised clumsiness and spasticity of limb movements more marked on the left C side with residual weakness here as well which may be attributed to injury to the cerebral hemispheres and possibly also in part at brain stem level; the injury to the right third cranial nerve resulting in the right eye tending to squint outwards slightly and for the pupil to be enlarged and unresponsive to light remains as before, and this injury is located either in the nerve itself or in its nucleus in the brain stem.

3. Since my previous examination of this child there has D occurred disappointingly slight change in her intellectual and behavioral capabilities, and her functional physical status. There have been only minor neurological changes which can possibly be attributed to further true recovery of injured neurological function. Other changes in her functional abilities such as her slightly improved speech and movements are more properly to be attributed not to recovery from injury but to new learning in the course of age development. It should be noted however that her mental E and physical progress in this respect, during the last 16 months since my previous examination, has been extremely slow and limited and bears no comparison with the rate and quality of development and acquisition of skills such as occur in a normal child at this age. This retardation of the ability to learn mental and physical skills during development is a common effect of head injury in a child, F and in this case her course demonstrates that this function also has been severely damaged and is compatible with the severity and nature of the head injury as assessed.

4. I would re-emphasise that from a point about 18 months to two years after injury true recovery of damaged neural function no longer occurs after head injury and from this aspect her condition is now permanently stabilised.

5. After reviewing the evidence we now have over the last 16 months of how very slowly and qualitatively poorly she has G developed, my opinion of an assessment of her future prospects in life is confirmed, and remain essentially the same as stated in my previous report."

(The relevant passages in the previous report read as follows:

"4. The child's permanent residual disabilities will be that she will remain grossly mentally and emotionally retarded, and will be severely physically restricted by spasticity H and clumsiness of movement. She may perhaps learn to stand and walk short distances unaided, slowly and clumsily.

5. As regards the general future prospects regarding quality of life, my opinion is that she will never be able to undertake any work of any sort, that she will not ever be able to care for herself or lead an independent life but will need lifelong help and protection either in a situation such as her parents' home or an...