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[2012] ZASCA 58
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Long and Another v Jacobs (145/11) [2012] ZASCA 58 (2 April 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 145/11
Not Reportable
In
the matter between:
KEITH LONG First Appellant
THE MEMBER OF THE EXECUTIVE
COMMITTEE
FOR EDUCATION, WESTERN CAPE
…....................................................
Second
Appellant
and
TANIA MEGAN JACOBS
…................................................................................
Respondent
Neutral citation:
Long &
another v Jacobs
(145/11)
[2012] ZASCA 58
(2 April 2012)
Coram:
Mthiyane DP, Cloete, Van
Heerden and Leach JJA and Petse AJA
Heard: 20 February 2012
Delivered: 2 April 2012
Summary:
Negligence –
what constitutes – educator assaulted by learner in
class – whether conduct of the
first appellant in failing to prevent assault on becoming aware of
death threats made by learner
against educator negligent.
Damages – apportionment –
when appeal court may interfere with the narrow exercise of judicial
discretion by trial court
in assessing apportionment.
Quantum – whether the assessment
of the award of damages was fair and appropriate.
ORDER
On appeal from
: Western Cape
High Court, Cape Town (Moosa J sitting as court of first instance):
The appeal is dismissed with costs,
including the costs occasioned by the employment of two counsel.
______________________________________________________________
JUDGMENT
______________________________________________________________
PETSE AJA
(Mthiyane DP, Cloete
Van Heerden and Leach JJA concurring)
Introduction
[1] On 27 September 2001, at Rhodes
High School (RHS), Cape Town the respondent, Ms Tania Megan Jacobs,
then a Grade 8D class teacher
at RHS, was attacked with a hammer by a
13 year old learner in her class, Bheki Kunene. She suffered serious
bodily injuries as
a consequence of the assault.
[2] RHS is a public school falling
under the control of the Western Cape Provincial Education
Department. The first appellant, Mr
Keith Long, was the headmaster of
RHS at the material time. The second appellant, the Member of the
Executive Committee of Education,
Western Cape is the nominal
representative of the department which was held to be vicariously
liable for the acts and omissions
of the employees of the department
at RHS.
[3] Subsequent to the attack the
respondent instituted action in the Western Cape High Court against
the appellants and two other
defendants who do not feature in this
appeal – the action having been withdrawn against them before
the commencement of the
trial – for damages consequent upon the
assault. The trial court found for the respondent and granted
judgment against the
appellants jointly and severally for damages in
the sum of R1 114 685.53, costs and ancillary relief. Subsequently it
granted the
appellants leave to appeal to this court, hence this
appeal. The judgment of the trial court has since been reported
sub
nomine
Jacobs v Chairman, Governing Body, Rhodes High School &
others
2011 (1) SA 160
(WCC).
[4] What occurred on 27 September 2001
was a concatenation of certain incidents that had been brewing for a
while after the respondent
joined the RHS as an educator on 1 January
2001, pursuant to a written employment contract concluded on 24
November 2000 between
the respondent and the Governing Body of RHS as
the employer.
Issues
[5] Four principal issues arise for
determination in this appeal,
viz
:
(a) whether the trial court erred in
finding that the appellants and their servants owed the respondent a
legal duty to act positively
to ensure the safety and security of the
respondent;
(b) whether the trial court erred in
finding that the first appellant’s conduct on 27 September 2001
was negligent and that
such conduct, if found negligent, was causally
linked to the harm which the respondent suffered;
(c) whether, in the event that this
court finds that the appellants were delictually liable to the
respondent, the trial court in
finding the respondent contributorily
negligent, erred in determining the parties’ respective degrees
of fault;
(d) whether the trial court erred and
misdirected itself in assessing the quantum of the respondent’s
damages to a degree
that would warrant interference by this court.
Pleadings
[6] In her particulars of claim, to
the extent relevant for present purposes, the respondent alleged that
the first appellant had
been negligent, inter alia, in the following
respects:
(1) the first appellant failed to
ensure that Kunene was not left unattended or unsupervised whilst he
called the police for assistance
on 27 September 2001;
(2) the first appellant failed to
ensure that Kunene was detained within his office or within other
suitable premises, until the
police arrived on 27 September 2001
and/or that his school bag was searched for dangerous weapons and/or
that it was safely secured;
(3) the first appellant failed to take
effective and reasonable steps to safeguard the plaintiff from being
exposed to the risk
of undue physical harm or danger from Kunene
when, by the exercise of reasonable care he could and should have
done so;
(4) the first appellant failed to take
any or adequate and/or reasonable steps to preserve and protect the
bodily integrity, psychological
well-being, mental tranquillity and
dignity of the plaintiff;
(5) the first appellant failed to
prevent the assault by Kunene upon the plaintiff, when by the
exercise of reasonable care, he
could and should have done so.
[7] It was common cause both on the
pleadings and at the trial that Kunene assaulted the respondent on 27
September 2001 with a
hammer. However, the appellants denied in their
further amended plea that the first appellant or any of the employees
of the second
appellant had been negligent in the respects alleged by
the respondent or at all.
[8] In the alternative the appellants
alleged, in the event that it was found that the assault on the
respondent was caused by the
negligence of the first appellant or
other employees of the second appellant as alleged or at all that the
assault was caused partly
by the fault of the employees of the second
appellant and partly by the fault of the respondent in that, so far
as is relevant,
she:
(1) generally did not exercise
reasonable care in the management of her relationship, in her
capacity as an educator, with Kunene,
in his capacity as a learner,
and that this resulted in the assault;
(2) paid insufficient attention to
Kunene, particularly after having read his journal, a fact which
should reasonably have caused
her to realise that he required more
attention than she was giving him;
(3) failed to inform the second
defendant and/or any other person in authority at the school and/or
the South African Police Service
about the contents of Kunene’s
journal upon becoming aware thereof and, in particular, when, by the
exercise of reasonable
care, she ought to have done so.
Facts
[9] The respondent, who was thirty-two
years old at the commencement of the trial, testified that on 27
September 2001 she was invigilating
her Grade 8D class which was
writing a comprehension test. She observed that Kunene, who was one
of the learners in her class,
was not writing the test. She
approached him only to discover that Kunene was drawing in his
journal. Despite her request that
Kunene stop drawing in his journal,
he refused to do so claiming that the test was difficult for him. At
that juncture she observed
that there was a death certificate in the
journal, made out in her name. Alarmed at what she had seen she
approached the Head of
the General Education Band at RHS, Ms Leslie
Hutchings, to report the incident. She then called Kunene out of the
class to meet
with Ms Hutchings in the corridor. Kunene came out with
his journal. The respondent attempted to show Hutchings the death
certificate
in the journal but Kunene would have none of that and
wrested the journal from the respondent’s possession. Hutchings
suggested
to the respondent that the latter should return to her
class whilst she dealt with Kunene. Hutchings then took Kunene to the
first
appellant and reported to him what the respondent had told her.
The first appellant advised Hutchings that he would attend to the
matter and that Hutchings could return to her class, which she did.
[10] The respondent further testified
that after some time Kunene returned to the class to collect his
school bag. She did not pay
any particular attention to him as she
sat at her desk. But she saw Kunene walking towards the exit door
carrying his school bag.
All of a sudden she saw Kunene again turning
back and retrieving something from his school bag. Immediately
thereafter he attacked
her with a hammer, striking her twice on her
head and once on her left arm when she tried to deflect his blows.
She was also struck
on her left knee. Some learners in her class
intervened and took Kunene out of the class. She sustained head
injuries, a fractured
wrist and a swollen left knee. She was conveyed
by ambulance to Vincent Palloti Hospital where she received medical
treatment for
her injuries.
[11] The first appellant testified
that on the day of the incident he was in his office when Hutchings
brought Kunene to him. Hutchings
told him that Kunene had made death
threats against the respondent in his journal and had refused to give
her the journal. The
first appellant asked Hutchings to leave Kunene
with him and said that he would deal with him. He then asked Kunene
to hand over
the journal but he refused. He therefore grabbed the
journal and had to wrestle it from him. He told Kunene to sit on a
chair outside
his office, instructing him not to leave. He then
studied the journal and saw the death threats as well as a death
certificate.
He described what he saw in Kunene’s journal as
‘absolutely horrifying stuff, stuff of nightmares’.
Alarmed by
this, he asked his secretary to call the police and
Kunene’s mother. When he returned to where Kunene was supposed
to have
been waiting, he found that he had left. Immediately
thereafter some learners came running into his office, yelling that
Kunene
had attacked the respondent. He went to investigate and found
Ms Gallie, an educator at RHS, struggling with Kunene – who
was
still in possession of the hammer – in the corridor. He joined
in the attempts to subdue Kunene and dispossessed him
of the hammer.
Legal duty
[12] It has been repeatedly proclaimed
in numerous judgments of this court that a negligent omission will
not attract delictual
liability unless it is also wrongful. In
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty)
Ltd
2006 (3) SA 138
(SCA) the requirements of wrongfulness were
discussed by Brand JA (with whom the other members of the court
concurred) in these
terms (para 10):
‘
Negligent
conduct manifesting itself in the form of a positive act causing
physical damage to the property or person of another
is
prima
facie
wrongful.
In those cases, wrongfulness is therefore seldom contentious. Where
the element of wrongfulness becomes less straightforward
is with
reference to liability for negligent omissions and for negligently
caused pure economic loss (see eg
Minister
of Safety & Security v Van Duivenboden
2002
(6) SA 431
(SCA) ([2002]
3 All SA 741)
in para [12];
Gouda
Boerdery BK v Transnet
2005
(5) SA 490
(SCA) ([2004]
4 All SA 500)
in para [12]. In these
instances, it is said, wrongfulness depends on the existence of a
legal duty not to act negligently. The
imposition of such a legal
duty is a matter for judicial determination involving criteria of
public or legal policy consistent
with constitutional norms.’
The learned judge of appeal continued
(para 12):
‘
When
we say that a particular omission or conduct causing pure economic
loss is “wrongful”, we mean that public or legal
policy
considerations require that such conduct, if negligent, is
actionable; that legal liability for the resulting damages should
follow. Conversely, when we say that negligent conduct causing pure
economic loss or consisting of an omission is not wrongful,
we intend
to convey that public or legal policy considerations determine that
there should be no liability; that the potential
defendant should not
be subjected to a claim for damages, his or her negligence
notwithstanding. In such event, the question of
fault does not even
arise. The defendant enjoys immunity against liability for such
conduct, whether negligent or not….’
[13] The trial court stated the
following in its judgment:
‘
Rhodes
High as a public school offering public education to the community,
is an organ of state. The educators of such school, and
in particular
the Defendants in charge of such school, as functionaries of the
State, were exercising public power and were accountable
for the
implementation of the rights enshrined in the Constitution and, more
particularly, “the right to freedom and safety
of the person to
be free from all forms of violence from either public or private
sources in terms of section 12(1)
(c)
of
the Constitution”.’
But although the appellants are
enjoined in terms of the
South African Schools Act 84 of 1996
, the
Western Cape Provincial School Education Act 12 of 1997 and the
regulations promulgated thereunder to ensure that a safe learning
and
teaching environment prevailed at RHS, that did not necessarily give
rise to a legal duty to act for purposes of delictual
liability.
(
Rail Commuters Action Group & others v Transnet Ltd t/a
Metrorail & others
[2004] ZACC 20
;
2005 (2) SA 359
(CC)
(2005 (4) BCLR 301)
paras 79-81).
[14]
In the present
matter, I have no doubt that societal norms require the imposition of
liability for negligence. If that were not
so then, no matter how
negligent the first appellant might have been, he would be immune
from the consequences. That cannot be
the law.
Negligence
[15] In
Kruger v Coetzee
1966
(2) SA 428
(A) at 430E-G this court stated the test for negligence as
follows:
‘
For
the purposes of liability
culpa
arises
if –
a
diligens paterfamilias
in the position of the defendant –
would
forsee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial
loss; and
would
take reasonable steps to guard against such occurrence; and
the
defendant has failed to take such steps.
…
Whether
a
diligens
paterfamilias
in
the position of the person concerned would take any guarding steps at
all and, if so, what steps would be reasonable, must always
depend
upon the particular circumstances of each case. No hard and fast
basis can be laid down.’
[16] In determining the question of
negligence one must of course pay due heed to the warning of Nicholas
AJA in
S v Bochris Investments (Pty) Ltd & another
1988
(1) SA 861
(A) at 866J-867B that:
‘
In
considering this question [reasonable forseability], one must guard
against what Williamson JA called “the insidious subconscious
influence of
ex
post facto
knowledge”
(in
S
v Mini
1963
(3) SA 188
(A) at 196 E-F). Negligence is not established by showing
merely that the occurrence happened (unless the case is one where res
ipsa
loquitur
),
or by showing after it happened how it could have been prevented. The
diligens
paterfamilias
does
not have “prophetic foresight”. (
S
v Burger
[1975
(4) SA 877
(A)] at 879D). In
Overseas
Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon
Mound)
[1961] UKPC 1
;
1961
AC 388
(PC) ([1961] All ER 104) Viscount Simonds said at 424 (AC) and
at 414G-H (in All ER):
‘
After
the event, even a fool is wise. But it is not the hindsight of a
fool; it is the foresight of the reasonable man which alone
can
determine liability.’
See also in this regard:
Sea
Harvest Corporation (Pty) Ltd & another v Duncan Dock Cold
Storage (Pty) Ltd & another
2000 (1) SA 827
(SCA) at 842F-H.
[17] In coming to the conclusion it
did, the trial court found that both the conduct of the employees of
the second appellant at
RHS prior to 27 September 2001 and also the
conduct of the first appellant on that day constituted negligence. In
this court counsel
for the respondent acknowledged, albeit
tentatively, that to the extent that the judgment of the trial court
relied on conduct
prior to 27 September 2001 it was predicated on
tenuous, if not erroneous grounds. Consequently I need say no more
about that aspect
in this judgment.
[18] The trial court analysed the
evidence and said the following in regard to what occurred on 27
September 2001:
‘
The
question to be answered is whether he [Long] acted as a reasonable
person would have done when Hutchings brought Kunene to him
with his
journal following a complaint by the plaintiff, or did his conduct
fall short of that of a reasonable person in his shoes?
There is some
uncertainty firstly, as to what he was told by Hutchings when she
brought Kunene to him and secondly, whether he
looked into the
journal before or after he had put Kunene in the chair outside his
office. The Second Defendant was somewhat ambivalent
about the first
issue. In his evidence in chief he merely testified that he was
informed that
“
threats”
were
made, but under cross-examination conceded that Hutchings had told
him that
“
death
threats”
were
made. I therefore find that at the time Hutchings handed Kunene over
to him, he was aware of the fact that death threats had
been made by
Kunene against the Plaintiff.’
[19] On the facts of this case the
central issue is whether the first appellant’s conduct at the
critical moment was reasonable
or not. The enquiry as to the
reasonableness or otherwise of the first appellant’s conduct
must be related to the relevant
circumstances. This aspect was
discussed in
Cape Metropolitan Council v Graham
2001 (1) SA
1197
(SCA) para 7 where Scott JA said:
‘
Turning
to the question of negligence, it is now well established that
whether in any particular case the precautions taken to guard
against
foreseeable harm can be regarded as reasonable or not depends on a
consideration of all the relevant circumstances and
involves a value
judgment which is to be made by balancing various competing
considerations. These would ordinarily be
“
(a)
the degree or extent of the risk created by the actor’s
conduct; (b) the gravity of the possible consequences if the risk
of
harm materialises; (c) the utility of the actor’s conduct; and
(d) the burden of eliminating the risk of harm” …
If a
reasonable person in the position of the defendant would have done no
more than was actually done, there is, of course, no
negligence.’
(Citations omitted.)
[20] With regard to the question as to
whether the first two legs of the negligence inquiry had been
established the trial judge,
having analysed the evidence, came to
the following conclusion:
‘
In
my view, the Second Defendant, by placing Kunene on a chair outside
his office unsupervised and by letting him out of his sight
and
control, should reasonably have foreseen the probability that Kunene
would slip away to his class and carry out the imminent
death
threats. The Second Defendant should have taken reasonable measures
to ensure that it did not happen by asking him to wait
in his office
in his presence or get a senior educator or any person, like Mr
Cooper, the caretaker, to supervise him and warn
the Plaintiff that
her life is in danger and instituted measures to secure her safety,
while he arranged to call the police and
Kunene’s mother. The
failure to take these measures in order to avoid the harm, in my
view, constitutes negligence on the
part of the Second Defendant.’
What this court must therefore
determine in this appeal is whether this conclusion was correct. In
Van Eeden v Minister of Safety & Security
(
Women’s
Legal Centre Trust
, as Amicus Curiae)
2003 (1) SA 389
(SCA) para
11 this court stated that:
‘
The
approach of our Courts to the question whether a particular omission
to act should be regarded as unlawful has always been an
open-ended
and flexible one.’
[21] The first appellant admitted that
Mrs Hutchings had told him that there was a death threat in Kunene’s
journal. That
gave rise to the reasonable possibility that Kunene
might attack the respondent. It was a simple matter for the
seriousness of
the threat to be investigated and for Kunene to be
neutralised whilst this was done. The first appellant in fact called
the police.
He could and should have taken the elementary precaution
of keeping Kunene in his study where he could keep an eye on him,
until
the police arrived. Kunene presented no threat to him
personally – he had already overpowered Kunene in order to
wrest the
journal from him.
Factual and legal causation
[22] Although there may in certain
circumstances be conceptual problems in regard to issues of legal
causation on the one hand and
factual causation on the other –
see eg
International Shipping Co (Pty) Ltd v Bentley
1990 (1)
SA 680
(A) at 700 E-G and
Minister of Safety & Security v Van
Duivenboden
2002 (6) SA 431
(SCA) paras 24-25 – it is
unnecessary to have to wrestle with these concepts in this case as
counsel for the appellants eventually
conceded that the respondent
had established the requirements for both factual and legal
causation. Thus no more need be said on
this score in this judgment.
Contributory negligence
[23] The gist of the argument advanced
by the appellants with regard to contributory negligence was that the
trial court, given
the conspectus of the evidence, erred in finding
that the appellants’ degree of fault was substantially greater
than that
of the respondent. It ought instead, so the argument
concluded, to have found that the respondent was in fact grossly
negligent.
When the question of apportionment arises a trial court,
having regard to the facts of the case, is obliged to asses the
respective
degrees of negligence of the parties. In assessing that
degree in which the plaintiff was at fault in relation to the damage,
the
court must determine to what extent the plaintiff’s acts or
omissions, causally linked with the damage in issue, deviated
from
the norm of the bonus paterfamilias (see eg
South
British Insurance Co Ltd v Smit
1962
(3) SA 826
(A) at 836). Where no error in principle is evident, the
appellate court will not lightly interfere with the apportionment
decided
upon by the trial court (see
South
British Insurance Co Ltd
at
837) unless the trial court’s assessment differs substantially
from what the appellate court thinks the assessment should
have been.
The rationale for this juridical rule is that the trial court in
‘assessing the relative degrees of blameworthiness…
is
not required to act with precision or exactitude but to asses the
matter in accordance with what it considers to be just and
equitable.’
1
[24] It must also be remembered that,
as Cloete JA said in
Transnet Ltd t/a Metrorail & another v
Witter
[2008] ZASCA 95
;
2008 (6) SA 549
(SCA) at 557 A-C:
‘
The
section [s 1(i)
(a)
of
the Apportionment of Damages Act 34 of 1956] requires the court of
first instance to exercise a narrow discretion. Accordingly,
an
appeal court will not decide the question afresh; it will interfere
with the exercise of the discretion by the trial court only
where it
is shown that:
“
(T)he
lower court had not exercised its discretion judicially, or that it
had been influenced by wrong principles or a misdirection
on the
facts, or that it had reached a decision which in the result could
not reasonably have been made by a court properly directing
itself to
all the relevant facts and principles.”
An
appeal court is therefore entitled to interfere (as it can in respect
of sentences imposed in criminal matters – another
example of
the exercise of a narrow discretion) where its assessment differs so
markedly from that of the court a quo as to warrant
interference.’
(Citations omitted.)
[25] When the principles set out above
are applied to the facts of this case, I incline towards the view
that although the learned
trial judge may have been somewhat generous
towards the respondent in his apportionment of fault, it cannot be
said that he failed
to exercise his discretion judicially or was
‘influenced by wrong principles or a misdirection on the facts
or reached a
decision which could not reasonably have been made by a
court properly directing itself to all the relevant facts and
principles.’
Thus the appellants’ argument on this score
cannot be sustained.
Quantum
[26] What remains to be considered is
the quantum of the respondent’s damages as awarded by the trial
court. The trial court
awarded a total amount of R1 114 685.53 made
up of (a) R 36 276.69 in respect of past medical expenses - which is
not in issue
in this appeal; (b) R46 830 for future medical expenses;
(c) R414 000 for past loss of earnings; (d) R545 750 for future loss
of
earnings; and (e) R350 000 in respect of general damages.
[27] With respect to future medical
costs the experts called on behalf of the parties were all agreed as
to the respondent’s
entitlement to an award for future medical
costs, save for an amount of R27 360 in respect of which Mr Yodaicken
– the clinical
psychologist called at the instance of the
respondent – felt that the respondent required additional
future medical treatment
in the form of insight therapy for a year.
The trial court allowed the amount claimed in respect of insight
therapy. It motivated
its award in this regard as follows:
‘
From
an industrial psychological’s point of view, Swart who is
qualified to express a view on life-coaching, is of the opinion
that
it is not necessary for the Plaintiff to undergo life-coaching. In
this respect, he agrees with Loebenstein and Zabow. I agree
with them
that to provide life-coaching would be tantamount to an
“
over-kill”
.
I am of the view that, should the Plaintiff receive insight therapy,
it would be unnecessary also to get life-coaching therapy.
I would
therefore allow for insight therapy but not for life-coaching
therapy. In the circumstances the amount of R27 360 in respect
of
insight therapy is allowed, but the amount of R12 600 in respect of
life-coaching therapy is disallowed.’
[28] In this court, this award was
assailed on the ground that it was made without any logical basis and
that the trial court had
little or no regard for the evidence of the
appellants’ experts, namely, Mr Loebenstein and Prof Zabow. The
latter, so counsel
submitted, considered that cognitive behaviour
therapy combined with pharmacological treatment would be the most
appropriate form
of treatment for the respondent’s condition.
This submission cannot be upheld. To my mind the trial judge took a
broad view
of the situation and made an award which he considered
appropriate in the circumstances. Moreover, the fact that Mr
Loebenstein
had initially agreed with Prof Yodaiken on the need for
the respondent to undergo insight therapy must be taken into account,
especially
in the light of the trial court’s finding that Mr
Loebenstein could offer no plausible explanation for changing his
initial
stance on this aspect.
Past and future loss of income
[29] With respect to the past loss of
income, it was submitted that the trial court committed a material
misdirection in regard
to the respondent’s age of retirement in
her injured state, in that it disregarded the agreement reached
between the industrial
psychologists representing the parties. On the
other hand counsel for the respondent contended that the trial
court’s award
in respect of both the past and the future loss
of earnings was not predicated upon the assumption that the
respondent’s
retirement age in both her uninjured and the
injured state would be 60 years but on the basis that it would be 65
years.
[30] As to the award for future loss
of income, it was argued on behalf of the appellants that the
approach adopted by the trial
court was wrong for it considered
whether the future earnings of the respondent, in her uninjured and
injured state, were realistic
whereas it ought to have asked itself
whether such incomes were likely. Consequently, so the appellants’
argument went, regard
being had both to the evidence of Prof Zabow
and Mr Loebenstein to the effect that with treatment the respondent
would be capable
of returning to a productive level of functioning,
the contingency deductions motivated by the industrial psychologist
Mr Swart,
ought to have commended themselves to the trial court.
[31] The gravamen of the appellants’
contentions in relation to past loss of income amounts to this. That
the trial court
failed to have regard to the difference of opinion
between the industrial psychologists of the parties concerning the
period within
which the respondent would have progressed to a level
nine educator. It was argued on behalf of the appellants that a
period of
eighteen years would have been a fair and reasonable
approach to adopt, given the respondent’s good qualities as an
educator
as against the period of 22 years which the trial court
adopted.
[32] As to future loss of income, it
was further contended that the trial court failed to have regard to:
(a) the prospect of a
significant amelioration of the respondent’s
psychiatric condition; (b) the acquisition of a further tertiary
qualification
which would enhance her prospects of reaching level C4;
(c) that with treatment the respondent would return to a productive
level
of functioning; and (d) that with treatment the respondent’s
post-traumatic stress disorder should resolve. Consequently,
so
argued counsel, the trial court ought to have applied lower
contingency deductions to those adopted by it.
[33] In considering this aspect of the
case, it should be remembered that: ‘Any enquiry into loss of
earning capacity is of
its nature speculative, because it involves a
prediction as to the future, without the benefit of crystal balls,
soothsayers, augurs
or oracles. All that the Court can do is to make
an estimate, which is often a very rough estimate, of the present
value of the
loss,’ – per Nicholas JA in
Southern
Insurance Association Ltd v Bailey NO
1984 (1) SA 98
(A) at 113G.
On all the evidence presented in the trial court – which I do
not propose repeating in this judgment –
and the reasons
motivating its ultimate conclusion, it seems to me that the learned
trial judge was justified in reaching the conclusion
he did. In light
of all the circumstances I am therefore of the view that the amounts
awarded in respect of past and future loss
of earnings fairly
represent reasonable compensation for the respondent’s loss
under those heads.
General damages
[34] The trial court, in determining
the question of what would be an appropriate amount in respect of
general damages and in the
exercise of its discretion, took into
consideration ‘the nature, extent and duration of the physical
injuries, the emotional,
psychological and psychiatric
sequelae
,
the pain, suffering and loss of amenities of life’. It
proceeded to award a sum of R350 000 which it considered
‘eminently
fair and equitable’.
[35] In this court the appellants
contended that the amount awarded for general damages by the trial
court is excessive and that
there should be a striking disparity
between that award and that which in this court’s view ought to
have been awarded. Counsel
for the respondent argued that when regard
is had to the nature of the injuries sustained by the respondent the
amount awarded
is fair and reasonable in the circumstances. It was
emphasised in argument that the appellants’ contentions to the
contrary
paid insufficient or no regard to: (a) the severity of the
injuries; (b) that the respondent was laid off from work for two
weeks;
(c) was rendered ‘an emotional, physical and mental
wreck’; and (d) suffered from delayed onset post-traumatic
stress
disorder and a major depressive disorder. She is also unable
to continue with her teaching career, something that was dear to her
heart.
[36] This court has repeatedly
stressed that a trial court, in the assessment of general damages in
respect of pain and suffering,
disability and loss of amenities of
life, enjoys a wide discretion to award what it considers to be a
fair and adequate compensation
to the injured party. Thus this court
will only interfere where there is a striking disparity between what
the trial court has
awarded and what this court considers ought to
have been awarded. See eg
Protea Assurance Co Ltd v Lamb
1971
(1) SA 530
(A) at 535A-B and the cases therein cited.
[37] As to what weight should be given
to previous awards in earlier decided cases, Potgieter JA in
Protea
Assurance v Lamb
stated, after a comprehensive review of several
cases, that there was no hard and fast rule of general application
requiring a trial
court, or even a court of appeal, to consider past
awards. The learned judge of appeal nonetheless acknowledged that
previous awards
might serve as a useful guide. In
Wright v
Multilateral Vehicle Accident Fund
(Corbett and Honey. The
Quantum
of Damages in Bodily and Fatal Injury Cases (1992) vol
IV E3-31 at E3-36) Broome DJP said the following:
‘
I
consider that when having regard to previous awards one must
recognise that there is a tendency for awards now to be higher than
they were in the past. I believe this to be a natural reflection of
the changes in society, the recognition of greater individual
freedom
and opportunity, rising standards of living and the recognition that
our awards in the past have been significantly lower
than those in
most other countries.’
Commenting upon this judgment in
De
Jongh v Du Pisanie NO
2005 (5) SA 457
(SCA) para 60 Brand JA
observed that the tendency towards higher awards is not capable of
mathematical precision and may well have
come to an end; that such
tendency is only one of the factors to be taken into account in the
exercise of a court’s discretion;
that care must be taken to
ensure that the award is fair to both sides; and that conservatism in
awards has its origin in the need
to also be fair to a defendant.
[38] In my view the learned trial
judge – after a thorough examination of the expert evidence –
gave comprehensive reasons
as to what motivated him to award the
amount he did. Accordingly I do not think that it would serve any
useful purpose to undertake
the same task in this judgment. Suffice
it to say that having considered all the relevant factors and the
authorities referred
to above the assessment of the damages awarded
by the trial court cannot be faulted.
[39] For all the aforegoing reasons
therefore this appeal falls to be dismissed.
[40] Before concluding, it is
unfortunately necessary to say something about the conduct of the
trial. The trial went on for many
weeks. The record itself comprises
nearly 6000 pages. The cross-examination of the respondent, for
example, lasted nine days. During
the course of the trial irrelevant
evidence was allowed resulting in the trial being needlessly dragged
out to inordinate lengths.
Another example is that evidence was
elicited from the first appellant which had absolutely no bearing on
the issues that were
germane at the trial but had more to do with his
personal life which should have been kept private. In addition, all
too often
the proceedings degenerated to a slanging contest between
counsel, this without due observance of the decorum of the court.
[41] All of this led to the trial
becoming an unnecessarily long and drawn out affair, no doubt adding
substantially to the bills
of costs. All of this was allowed to
happen without any restraint, and is to be deprecated. Legal
practitioners should properly
apply themselves to the task at hand
and do so without unnecessarily prolonging litigation and they and
the trial judge should
ensure that proceedings are limited to that
which is relevant. To fail to do so will not only occasion a wholly
unnecessary escalation
of costs but will lead to the human and other
resources of the courts in this country, which are under severe
strain, not being
optimally used.
Order
[42] The appeal is dismissed with
costs, including the costs occasioned by the employment of two
counsel.
_____________
X M Petse
Acting Judge of Appeal
APPEARANCES:
For Appellants: J C Heunis SC (with
him R Jaga)
Instructed by:
State Attorney, Cape Town
State Attorney, Bloemfontein;
For Respondent: M L Sher (with him U
Deetlefs)
Instructed by:
Parker & Khan Inc, Lansdowne
E G Cooper and Majiet Attorneys,
Bloemfontein
1
Lloyd-Gray
Lithographers (Pty) Ltd v Nedcor Bank Ltd t/a Nedbank
1998 (2)
SA 667
(W) at 673E.