Administrator General for South-West Africa and Others v Kriel (414/86) [1988] ZASCA 21; [1988] 2 All SA 323 (A) (24 March 1988)

Case No 414/86 mp

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

THE ADMINISTRATOR GENERAL FOR

SOUTH-WEST AFRICA Appellanr No. 1SERGEANT DAMASEB Appellanr No. 2ALEXANDER DU TOIT' Appellant No. 3

and

GERHARD KRIEL Respondent

CORAM: HOEXTER, VAN HEERDEN et STEYN, JJA

HEARD: 7 March 1988 DELIVERED: 24 March 1988

JUDGMENT

HOEXTER, JA

2.

HOEXTER, JA,

On 2 March 1984, and at Kombat, SWA, two members of the SWA Police Force fired shots in an attempt to arrest a robber. Oné bullet ricocheted and struck Marie Kriel ("Marie") in the head. Marie was then eight years old and a pre-primary pupil in sub-B. She was a normal healthy child,fond of sport, and an average scholar. Her intelligence was such that in the normal course of events she would have matriculated.

The gunshot wound caused grave injury to Marie's brain and paralysed her body; but it left her mental faculties unimpaired. After the accident Marie received medical and surgical treatment at hospitals in Grootfontein and Windhoek whereafter she spent several months in the Red Cross Hospital for Children at Cape Town. Since July 1985 she has been a pupil at the Elizabeth Conradie School at Kimberley.

Alleging

3.

Alleging that the shot in question had been negligently fired Marie's father ("the plaintiff") instituted an action for damages in his personal capacity and in his capacity as Marie's father and natural guardian against the three appellants jointly and severally. The matter came to trial before HENDLER, AJ in the Supreme Court of SWA on 10 June 1986. At the trial the appellants admitted liability and the sole issue was the guantum of damages to be awarded.

At the conclusion of the trial judgment was reserved. On 29 August 1986 HENDLER, AJ gave judgment with costs for plaintiff in various amounts which are set forth below and which total R 836 631,96.

In respect of the period from the date of the accident to the date whereon Marie will attain her majority, the Court below -

(A)

4.

(A) awarded the plaintiff in his personal

capacity

(1) as past expenses, ihcluding medicalexpenses, the sum of R36 797,96;

(2) in respect of future cars, includingmedical and para-medical axpensescalculated from 10 June 1986, thesum of R183 817,00.(My uncerlining)

The Court below further -

(B) awarded the plaintiff in his capacity asthe father and natural guardian of Marie

(1) as general damages the sum ofR150 000,00;

(2) in respect of loss of income thesum of R152 553,00;

(3) in respect of future (i e the periodsubsequent to Marie's majority)

medical and para-medical costs, the sum of R313 464,00. (My underlining)

By agreement between the parties the amounts awarded were to be paid to a trust fund about to be formed and subject to the approval of the trial Judge.with leave of the trial Court the appellants appeal against the quantum of the damages awarded by the Court a quo. Their sole complaint is in regard to item (B)(l) above - the amount of R150 000,00 áwarded as general

damages 5. damages. It is urged on behalf of the appellants that in the process of determining item (B)(l) the trial Court misdirected itself. Accordingly this Court is invited to make its own assessment of a figure fairly representing the general damages in this case and to substitute the latter for the amount of R150 000,00 at which the trial Court arrived.

Upon what part of the learned Judge's reasoning the appellants rest their contention of a misdirection will be indicated in due course. In order to prepare the ground for a proper consideration of the appellants' complaint it is necessary first to describe the nature of the injury inflicted upon Marie by the gunshot wound to her head and the nature and extent of her permanent incapacity consequent thereon; and second to particularise the'computation of medical and para-medical costs underlying items (A)(2) and (B)(3) in the trial Court's total award of damages.

In the judgment of the trial Court Marie's injury and her resultant disabilities are comprehensively

reviewed

6.

reviewed. For purposes of the present judgment the position may be summarised as follows:-

(1)" The gunshot wound caused a depressed fracture of the

skull and serious brain damage. Marie remained uncon= scious for some weeks after the injury but upon regaining consciousness (and after a spell of amnesia) she reco= vered the faculties of speech and memory. Her intelligence is normal.

(2) Although her life expectancy has been reduced,a prognosismade in March 1985 indicated that Marie would live for

at least a further 44 years, i e to the age of 53 years.

(3) There is a risk of almost 50% that Marie may developpost-traumatic epilepsy.

(4) The brain damage has resulted in partial paralysis of

Marie's arms and legs. Such residual movement of which her limbs are still capable is functionally insignificant. She is incapable of doing anything for herself.

(5) Marie

7

(5) Marie has become severely spastic. She has alreadyundergone a bone-marrow operation to allêviate' herspasticity.

(6) Marie suffers pain daily and she will continue to do sofor the rest of her life.

(7) Although Marie has sensation in all four limbs she has(subject to what has been said in (4) above) nofunctional movement below her neck. She is able tocontrol her neck muscles sufficiently to enable her to

use a headstick attached to a specially moulded helmet

which fits over her head; but this exercise imposes a

strain on the neck muscles. and causes her pain.

(8) The brain damage has resulted in partial incontinence ofthe bladder.

(9) Marie cannot stand or sit unsupported. Left unsupportedshe falls over. She is confined to a wheel-chair withher shoulders strapped to keep her in an upright position.She is unable to operate a self-propelled wheel-chair.

With

8.

With the aid of a headstick, however, she will be able to operate a motorised wheel-chair.

(10) Marie cannot feed herself. With assistance and support she may eventually be able to use her left hand to feed herself; but in order to do so she will require a limb-balancer.

(11) Marie is unable to maintain her balance when seatedon a conventional toilet-seat. She cannot bath oreven wash herself. She cannot dress and undress

unaided. In bed at night she cannot, unassisted, turn

from side to side.(12) Marie is the most severely disabled pupil at the

Elizabeth Conradie School. Despite her average intel=ligence her school progress has been retarded by herdisability. However, she will probably reach standard8. She will remain at the Elizabeth Conradie Schooluntil she turns 21. At the school she requires afull-time live-in attendant to look after her.(13) In

9.

(13) In order to complete her schooling Marie will require a sophisticated computer equipped with remote control switches. The helmet and headstick already mentioned will enable her to type on a computer key-board; and to write and to paint. She will require special tape-recorders.

(14) Once she has completed her schooling institutional carewill be neither necessary nor advisable for Marie.Given suitable accommodation, architecturally adapted

to her particular needs, and if she is provided with the necessary motor transport (also with suitable structural modifications) and personal attendants, Marie and will be able, she may prefer, to live on her own or in some sort of commune. Whether she chooses to live on her own or with her family or in a commune, she will for the rest of her life require two full-time personal attendants.

To

10.

To sum up: Marie has survived catastrophic bodily injury with her mind intact. while she has the intelligence and while she experiences the emotions and feelings of any ordinary healthy girl. of her age, she is now - and for the rest of her days she will remain— imprisoned in an inert and helpless body.

I turn next to the trial Court's computation of the medical and para-medical costs. The first witness called on behalf of the plaintiff was a Mrs Margaret Thompson. She is a very experienced occupational therapist and an expert in the field of para-medical aids and equipment designed to enable disabled persons to become as independent as possible. On 6 June 1986 Mrs Thompson spent 6 /2 hours at the Elizabeth Conradie School where she observed and interviewed Marie and discussed the latter with members of the school staff. On 7 June 1986 Mrs Thompson compiled a very comprehensive typewritten report setting forth her

assessment

11.

assessment of Marie's needs in regard to medication, equipment, personal attendants, transport and accommodation. In the witness stand Mrs Thompson gave lengthy and detailed evidence in support of her report. Subject to a criticism that her estimates of the durability of some of the para-medical aids recommended by her were perhaps "a bit too pessimistic" the learned Judge found Mrs Thompson to be an excellent witness who had "an outstanding knowledge of the needs and requirements of a paraplegic". I should add that the testimony of Mrs Thompson was supported by two other witnesses who are members of the staff of the Elizabeth Conradie School. These were respectively aState medical-officer responsible for the medical welfare of the pupils and a physio-therapist who is a graduate in science.

Here it is necessary to quote at some length from that portion of the trial Court's judgment in which

its

12.

its award in respect of future medical expenses (items

(A)(2) and (B)(3) aforementioned) are particularised:-

"Up until the Over theage of 21 age.of 21

1. MEDICATION

For the tablets which Marie

has to take for the rest of

her life an amount of R37 543,00 R63 062,00

is awarded.

1. TOILET AIDS

(a) Bladder

Pads and diapers are neces=

sary to assist with bladder

incontinence, for this a

tranquillity system is

required and I award the

amount of R37 010,00 R62 167,00

(b) Bowel

To enable Marie to use the toilet in a conventional manner instead of lying on a bedpan, a Gil chair is

necessary and at a later

stage she will require acommode-shower chair withpadded toilet, and forthese items I award theamount of R 1 908,00 R 1 010,00

3. BATH AND BATHROOM

13.

Up until the Over the

age of 21 age of 21

3. BATH AND BATHROOM

(a) Marie requires to besupported in the sittingposition using a speciallydesigned bath support cushionknown as the Burnett bath-seat. She also requires ahoist and the recommendedone is a Mangar bath-hoist.For these items I award the

amount of R 6 620,00 R 2 425,00

(b) This is for a Spartanexamination couch to makedressing and undressingpossible in the bathroomand also for a Parker bathwhich will be requiredwhen she eventually has apermanent home. Here I

award the amount of R 552,00 R 1 952,00

4. ATTENDANTS

I am satisfied that itwould be fair to award thecosts of 1 attendant onlyup until Marie reaches theage of 21, when she leavesthe Elizabeth Conradieschool, but thereafter I amsatisfied that she willrequire an additidnal atten=dant who is also able todouble-up as a driver. Tothis end I award the amountof R28 594,00 R134 481,00

5. TRAVELLING

14.

age of 21 age of 21

5. TRAVELLING ALLOWANCES

I am satisfied that Marie

should be allowed the

travelling allowance from

school to her home up until

the age of 21 together with

the costs of the attendant

that will travel withher.

Here the award is in the

amount of R32 940,00

6. SCHOOL FEES

The amount awarded here is R 5 833,00

7. COMMUNICATION(i) Head Sticks

The aids here form the

most vital part of

Marie's life and for the

head sticks and helmets

which she will require I

award the amount of R 9 886,00 Rl5 321,00 (ii) Remote control swítches

which are an absolute

necessity I award the

amount of R 1 980,00 R 1 128,00 (iii) Tape recorder

This being Marie's main

means of communication,

a special type is re=

quired, and for this I

allow R 4 974,00 R 4 858,00

(iv) Intercom and Telephone

These items are also

essential for Marie's

wellbeing and I award R 1 980,00 R 180,00

8. BED

15.

Up until the Over the age of 21 agê of 21

8. BED AND MATTRESS

Marie requires a special

type and for this I allow

the amount of R 4 076,00 R 2 442,00

9. WHEELCHAIRS AND SUPPORTSThese are obviously essen=tial items for Marie'swellbeing and I award the

amount of R24 759,00 R28 950,00

10. ELECTRIC TILT TABLEAND ARM BALANCER

These items are once againabsolutely necessary as itis essential that Marie standsdaily as part of the therapyand the arm balancer is re=quired to attempt to getsome useful movement in herleft arm. A special supportcushion is also required forstanding. The amountawarded here is R20 367,00 R23 222,00

11. TRANSPORT

For the special transport

Marie will require, I

award the amount of - R20 527,00

12. PHYSIOTHERAPY

This Marie will require for

the rest of her life and

for this I award the amount

of - R21 580,00

COMPUTER

16.

Up until the Over the age of 21 age of 21

13. COMPUTER

The final item is a computer which is probably one of the 'most important aids for the rest of Marie's life and for this I award the amount of R26 067,00 R34 647,00

R 245 089,00 R 417 952,00

The way has now been cleared for an examination of the appellants' complaint that the trial Court misdirected itself in regard to the award of general damages. The portion of the trial Court's judgment quoted above was prefaced by certain observations by the learned Judge which I quote hereunder:-

"On consideration of all the factors, I am satisfied that the following para-medical aids were shown on a balance of probability to be necessary for Marie to lead any type of reasonable existence at all, and in no way would provide her with an utopian situation. Itmust be borne in mind that Marie is not a vegetable, she has a mind which comprehends everything and is able to communicate freely with her fellow-scholars and a substantiai

sum

17.

sum is necessary in an attempt to ameliorate her tragic position.

I consider that the aids recommended as essential by Mrs Thompson should be con= sidered as future medical expenses and thac

the amounts awarded for these aids should not be deducted or play any meaningful roie when deciding upon the amount of general damages to award which requires entirely different

considerations.

I make the following awards for furure medical expenses bëing essential medication and para-medical expenses being the aids which I find on the balance of probabilities were necessary." (My underlining)

Mr Scott (who, with Mr Avenant, appeared for the

appellants) submitted that the sentence underlineó in the above-quoted remarks by the learned Judge constituted a material misdirection. As pointed out by this Court in Southern Insurance Association v Bailey NO 1984(1) SA 98 (A) at 113 E/F, where (as here) damages for bodily injuries are awarded not in a globular amount but under separate heads, a trial Court should guard against the danger of duplication as a result of an overlapping between separate awards. Counsel for the appellants contended that in seeking zo

determine

18. determine the quantum of general damages by excluding from consideration the amounts awarded under items (A)(2) and (B)(3) to cover the cost of the para-medical aids thereunder specified, the trial Court's total award had resulted in a duplication of damages. Most of these para-medical aids, so it was urged, were of a nature calculated to ameliorate Marie's loss of the amenities of life - a factor looming large in the trial Court's award of R150 000,00 for general damages; and in consequence, so the argument proceeded, there wasoverlapping between the awards under items (A)(2) and (B)(3)on the one hand and the award under item (B)(l) on the other. On behalf of the respondent Mr Scholtz contended that in the instant case there had been no duplication of damages. He forcibly argued that any possibility of overlapping had been eliminated for the reason that in weighing general damages the learned Judge had visualised Marie as a patient already equipped with and served by the para-medical aids. Now it may well be that the Court below so viewed the matter, but

the ..

19. the question remains in what way Marie's unhappy lot is likely to be ameliorated by the provision of the para-medical aids; and whether such amelioration does not in fact to some extent impinge upon the issue of general damages.

Counsel for the appellants relied strongly upon the reasoning reflected in a judgment of KRIEGLZR, J delivered on 14 June 1986 inthe Witwatersrand Local Division in thematter of Johannes Dhlamini v Government of RSA and reported in Corbett & Buchanan, The Quantum of Dámages, vol III, p 554. Following a spinal cord injury caused by a gunshot wound the plaintiff in that case had become a paraplegic unable to stand or walk unassisted and he was permanently confined to a wheel-chair. KRIEGLER, J awarded the plaintiff damages totalling R224 000,00 and computed under ten separate heads. In respect of loss of earnings (para 1) the sum of R74 000,00 was awarded. In respect of pain and suffering, loss of the amenities of life, disability and disfigurement, (para 10) the sum of R50 000,00 was awarded. The balance of

R100,000.00

20.Rl00,000.00 was made up of 8 separate awards (paras 2 - 9)to cover the costs of the following: a wheel-chair,a Levo chair; tyre inserts; an attandant; treatmentand consultations; and future medical expenses. Inassessing general damages at the sum of R50 000,00KRIEGLER, J remarked (at 587):-

"If I were to have assessed the damages for the non-patrimonial elements in isolation, I would have arrived at an award considerably ih excess of the figure at which I have arrived. I have grappled with the question what, in law, logic or equity, underlies my conviction that there must be some interaction between the awards for patrimonial loss on the one hand and the award for non-patrimonial loss, on the other. Whatever may be the rationale in principle or in other cases, it appears to me, in this case, and on its particular facts, that I cannot ignore the very substantial awards made under paragraphs 2, 3, 5 and 6 above when I come to assess general damages for pain and suffering, loss of amenities of life, disability and dis= figurement. Those awards were considered reasonable for the very reason that they served to ease the plaintiff's painful shuffle across this mortal coil. They were intended to

reduce

21.

reduce the suffering, the loss of amenities of life and general disablemenr that the plaintiff will have to live with. I cannot ignore them when assessing those very elements under what is a different head of damage, but forms part of one and the same award. In the result, I have assessed the damages under this head, in the sum of R50 000.00."

(I should mention that the awards under paragraphs 2, 3, 5and 6 here mentioned by KRIEGLER, J were for the costsrespectively of a wheel-chair(R16 000,00); a Levo chair

(R16 000,00); an attendant (R40 000,00) and drop shields(R7 000,00)).

It seems to me, with respect, thar KRIEGLER, J was entirely right in concluding that, on the facts of the case before him, some reciprocal relationship necessarily existed between the patrimonial and the non-patrimonial elements in the total award of damages; and that he rightly guarded against the danger of duplication by assessing general damages in the light of the fact that the sums awarded to cover the costs of some of the para-medical aids would to an

appreciable

22.

appreciable extent serve to ameliorate Dhlamini's suffering and to compensate him for the amenities of life which he had lost. In my view, furthermore, on the facts of the case before us, the awards under items (A)(2) and (3)(3) on the one hand and the award under (B)(l) on the other are likewïse interlinked and to some degree overlap. For the reasons which follow the criticism levelled by the appellants at the trial Court's approach to the matter of general damages is, in my opinion, well-founded.

Under the heading of general damaces the trialJudge included "damages for pain and sufferïng and loss of the amenities of life"; and in this connection he further observed in the course of his judgment:-

"As already stated, Marie, because of her

spasticity, wïll endure pain for the rest of her life and it is also quite clear that there are really no amenities of life left to her whatsoever besides the fact that she is able to speak and hear and communicate by using a head stick."

I deal first with the matter of pain. The sum of the

amounts

23.

amounts awarded under items (A)(2) and (B)(3) is R183 817 + R313 464 = R 497 281. Of the last-mentioned amount a little more than one-fifth, that is to say R37 543 + R63 062 = R 100 605 was awarded to cover the costs of medication. The broad purpose of medication is therapeutic and curative; and the award of R100 605 must be regarded, I think, as being calculated to reduce and alleviate, at least to some extent, the pain which will burden Marie for the rest of her life.

I consider next the matter of the loss of the amenities of life. The balance of the awards under items (A)(2) and (B)(3), that is to say R497 281 less R100 605 = R396 676 is aimed at the provision of the twelve para-medical aids already detailed in this judgment. "An appraisal of those various aids, so it seems to me, points inescapably to the conclusion that the provision of many of them are calculated to ameliorate, to some extent at least, the loss of the amenities of life suffered by Marie. That the learned Judge in the Court a quo took a different view of the matter

is

24.

is indicated not only by that portion of his judgment already quoted, and underlined by me, but further appears from the following remarks made by him in dealing with the appellants' application for leave to appeal:-

"I am also not impressed by the argument

that in calculating general damages and especially with regard to the loss of amenities of life, I should have considered the amounts awarded for the para-medical aids. The reason I say this is because none of the aids are able to restore to Marie the loss of amenities of life. None of them can replace the loss of all her limbs and what this deprives her of. The aids merely make life less intolerable."

The concept of the loss of the amenities of life has been tersely but aptly defined by LORD DEVLIN in H West & Son Ltd v Shephard [1963] UKHL 3; (1963) 2 AER 625 (HL) at 636 G/H as -

"...a diminution in the full pleasure of living."

The amenities of life may further be described, I consider, as those satisfactions in one's everyday existence which flow from the blessings of an unclouded mind, a healthy body, and sound limbs. The amenities of life derive from such simple

but

25. but vital functions and faculties as the ability to walk and

run; the ability to sit or stand unaided; the ability toread and write unaided; the ability to bath, dress andfeed oneself unaided; and the ability to exercise controlover one's bladder and bowels. Upon all such powers individualhuman self-sufficiency, happiness anddignity are undoubtedlyhighly dependent.

That none of the para-medical aids with which the case is concerned will be able - to use the words of thelearned trial Judge - "to restore to Marie the amenities oflife" which she has lost, must be accepted of course as a sombre truth. It is no less important to bear in mind that no amount of para-medical aids can ever be a substitute for limbs which have ceased to function. But the matter does not end there. As HENDLER, AJ himself pointed out, the para-medical aids would make life "less intolerable" for Marie. It seems to me that whatever renders the uncomfortable and deprived existence of an accident victim less intolerable

or ......

26.

or more endurable must inevitably have the tendency to restore to the victim of an accident at least some of the pleasure in living once enjoyed by such victim; and likewise to serve as some measure of compensation for the loss of the amenities of life.

Without the para-medical aids Marie would be doomed to a wretched existence spent, to the end of her days, within the walls of an institution. She would remain helpless, comfortless, and wholly dependent upon others to satisfy her most basic bodily and intellectual needs. Since her mind is clear there must be added her anguish and frustration flowing from the realisation of her utter help= lessness. It is true that even when she has the advantage of the para-medical aids Marie's plight will still be a pitiable one; but it will no longer be a completely hopeless one. A few examples will suffice. Having her own full-time personal attendant while she remains at the Elizabeth Conradie School will make life a little more comfortable and

congenial

27.

congenial for her. Having two such personal attendants when she attains majority and leaves the school will give her greater mobility and independence. In particular it will enable her to throw off the shackles of confinement to an institution and allow her, if she so wishes, to live in a home of her own - by common consent not the least of the many pleasures of living. The aids to communication and the sophisticated computer will help Marie to become more self-sufficient and self-reliant; and so will the wheel-chairs, the electric tilt-table, and the arm-balancer. The toilet aids and the specialised bath= room and bedroom equipment will all conduce to her greater comfort and to a sense of comparative well-being.

For the reasons aforegoing I conclude that in disregarding the interrelationship between the patrimónial and non-patrimonial elements of damages in its assessment, and in treating items (A)(2) and (B)(3) on the one hand and item (S)(l) on the other as completely discrete and individually distinct components in its total award of damages, the trial

Court

28.

Court materially misdirected itself. In the present case the said components to some degree overlap and the approach of the trial Court resulted to an appreciable extent in an improper duplication of damages. Accordingly the appellants' attack upon the award of general damages as determined by the Court below succeeds and this Court is required to substitute for the trial Court's figure its own assessment of general damages.

Notwithstanding the perceptible ameliorationof her burden of pain and suffering and of her loss of theamenities of life which will result from the provision ofthe various para-medical aids, it is clear on all the factsof this pathetic case that Marie has suffered and will alwayssuffer pain and discomfort; and that for her the ordinarypleasure of living has been grossly and cruelly diminished.Having made due allowance for the aforesaid amelioration theaward under the head of general damages must be a verysubstantial one. In all the circumstances of the case Iwould

29.

would assess general damages for pain and suffering and for loss of the amenities of life at the figure of R110 000,00.

An adjustment of a patent error in the order of the trial Court is necessary. The trial Court's assessment of damages for loss of earnings (see item (B)(2)) was based upon a figure of R213 403,00 derived from actuarial evidence adduced. In order to provide for contingencies the learned Judge sought to reduce this figure by 25%. However, an arithmetical error crept into the trial Court's deduction : for contingencies and under the head of loss of earnings it awarded R152 533,00. It should have awarded R160 052,00.

In the result the following orders are made:-(1) The

30.

(1) The appeal succeeds with costs, including the costs consequent upon the employment of two counsel. (2) The amount of general damages awarded in paragraph (B)(l) of the trial Court's order is reduced from R150 000,00 to Rll0 000,00. (3) In order to cure a patent arithmetical error paragraph (B)(2) of the trial Court's order is corrected by substituting for the figure of R152 553,00 awarded as damages for loss of income the figure of R160 052,00.

G G HOEXTER, JA

VAN HEERDEN, JA )STEYN, JA )Concur