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1984
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[1984] ZASCA 78
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Madigage v Senator Insurance Company Ltd. (78/82) [1984] ZASCA 78 (12 July 1984)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
JOHN MADIGAGE APPELLANT
and
SENATOR INSURANCE COMPANY LIMITED RESPONDENT
CORAM: TRENGOVE, VILJOEN, JJA et HEFER, AJA HEARD: 22 MAY 1984 DELIVERED:
1984-07-12
JUDGMENT
VILJOEN,JA
On 16 December 1978 the appellant, driving
2.
his motor vehicle, collided with another vehicle at the intersection of 4th
Avenue and 3rd Street, Geduld, Springs, in which collision
the appellant
sustained certain injuries. In the Witwatersrand Local Division the appellant
sued the respondent, the insurer in terms
of the Compulsory Motor Vehicle
Insurance Act 56 of 1972 of the other vehicle, for damages suffered as a result
of the injuries.
It was conceded by the respondent that the driver of the
insured vehicle was negligent and that his negligence was the cause of the
collision. The only issue which remained and on which the trial Court heard
evidence was that of the quantum of damages. The trial
Court awarded the
appellant an amount
of /
3.
of R3 230 but in view of a tender made which exceeded the amount awarded, the
trial Court awarded costs incurred up to the time of
the tender to the appellant
and ordered him to pay the costs subsequent to the tender. Against the whole of
the judgment of the Court
a quo the appellant now appeals. The attack in this
appeal is against the amount of R250,00 awarded for future medical expenses and
the amount of R2 889,76 as general damages. The balance of the R3 250 in respect
of medical and hospital expenses and loss of earnings
was agreed upon by the
parties.
The appellant was 53 years of age at the time of the collision. At
the trial it was common cause that
he /
4.
he was unconscious after the collision; that he sustained an injury which
caused haematuria and that he sustained contusion of the
ribs. After recovery of
consciousness in the Far East Rand hospital to which he had been admitted on the
day of the collision the
appellant complained of severe neck pain. He was
discharged from hospital on 2 1 December 1978 and resumed work on 3 January
1979.
No direct evidence was led as regards his condition while in hospital but
both sides agreed to certain hospital records being admitted
as evidence. For
some time (which, according to the witness Freddy Maboa was a period of about 6
weeks but which according to the
evidence of the appellant was
about /
5.
about three months) the appellant received physiotherapy as an out-patient at
the medical station on the Impala Platinum property.
According to the appellant
his neck was treated.
The appellant claimed that as a result of the collision
he sustained:-
1.
A severe neck
injury.
2. A hemipares is involving both right limbs and the right side of the face
causing the appellant to appear to speak out of the left
side of his mouth and a
slight speech impediment.
3. Injuries to his knee and ribs which were apparently due to contusion land
which cleared up soon after the collision.
According to the
appellant he experienced a
severe /
6.
severe headache after the collision but that condition soon resolved itself.
He further testified that he suffered severe pain in
his back in hospital and it
was common cause that that could have been caused by some injury to the kidney
or the bladder. The pain
in his back and the haematuria cleared up, however,
soon after the appellant's admission to hospital. Under these circumstances the
learned trial Judge considered that his main task was to determine whether the
appellant's complaints in respect of his neck injury
and the hemiparesis were
well founded and, if so, to what extent he should be compensated for such
injuries.
The task was complicated, however, by the
fact /
7.
fact that the appellant had sustained a severe head injury in 1944 when he
was 19 years of age; it was 34 years before the collision
in 1978. He was
knocked over the head with a knob kierie which fractured his skull in the area
of the left frontal lobe of the brain
and which caused severe scarring of the
brain extending into the ventricle. Two neuro-surgeons, one on each side, were
called to
give evidence. Mr Froman testified for the appellant and Mr Snyckers
for the respondent. Mr Froman first examined the appellant on
8 January 1981. Mr
Snyckers examined him on 25 August 1981 and then Mr Froman again examined him on
6 May 1982. Both the experts
furnished reports to the attorneys who had
instructed /
8.
instructed them but both reserved final opinion pending the evidence of
witnesses who could throw light on the appellant's condition
before the
collision. At intervals they sat in court listening to some, if not all, of the
evidence. On what they did not hear they
were briefed.
Warrant officer Majola
of the South African Police, Mr Thompson and Mr Delagey testified for the
appellant. The respondent called
one Venter to testify for it: . Subject to
minor concessions and adjustments, each of the expert witnesses either claimed
to find
support for his views in the testimony of the lay witnesses or, in the
absence of any evidence affecting such views, adhered
substantially /
9.
substantially thereto.
After having dealt with the evidence of the
witnesses called on both sides, and particulary with the evidence of the two
neuro-surgeons,
the learned trial Judge listed the salient facts which he found
proved on the probabilities, as follows:-
"1. Before the collision in 1978 the Plaintiff
suffered from
two conditions. Firstly in
1944 the Plaintiff received a severe blunt
head injury which is demonstrated on the brain scan photographs to have resulted
in extensive scarring going right down to the ventricle.
The mild hemipares is
which the Plaintiff now exhibits will in all probability increase with advancing
age. There is a possibility
of epilepsy (in respect of his right limbs), a grave
impairment of speech and the ability to select the right words to express a
thought. And later a possibility
of
/
10.
of an impairment of mental faculties resulting in a change of personality. I
rely on this finding in the main on the opinion of Mr
Snyckers Secondly, the
Plaintiff's cervical spine showed clear evidence of degenerative spondylosis
which is a condition compatible
with his age and a condition which must have
developed over many years.
2. The work-history of the Plaintiff between 1944
and 1976 shows that he
was able to perform
strenuous manual labour. That demonstrates
that the
Plaintiff had overcome any deleterious
effects which the 1944 episode might
have
caused in relation to his work problems. But,
as stated by Mr
Snyckers, his ability to move
heavy objects is a less reliable indication
of the presence of incipient hemiparesis than tests which relate to the
dexterity of the Plaintiff's hands and fingers. The way in
which he executes his
signature for instance
could be a better guide in this respect than his ability to move heavy
objects.
3. After 1976 and until 16th December, 1978 when
he /
11.
he was involved in the collision between two motor cars,; he did not work as
a manual la- bourer. The work which he performed during
this period could have
been performed by the Plaintiff while undergoing the degenerative processes
which involved loss of brain cells
without it being noticeable to lay
persons.
4. On 16th December, 1978 the Plaintiff received a blunt head injury in the
collision. Neither the time when he received that injury
nor the time of the
Plaintiff's admission to hospital is known from any source other than that of
Plaintiff's evidence. The Plaintiff
stated in evidence that he received the
injury at about 3 p.m. and that he recovered consciousness at about 6 p.m. The
first entry
on the treatment sheet dated 16.12.78 reads:
'Unconsious for period'. That entry suggests that the Plaintiff was conscious
on admission or recovered consciousness in hospital
soon after admission but
after having been unconscious for some unknown period before admission.
The next entry: 'Pain neck +++' and '? fascial
(sic) /
12.
(sic) (R) side for observation' as well as the directions for treatment
numbered 1 to 4 support the contention that the Plaintiff
regained consciousness
on the day of admission and presented no further problem related to the function
of the right limbs.
The absence of any entry suggesting a severe head injury is significant.
5. Both experts accept that the Plaintiff suffered acute neck pain after
recovering consciousness in hospital and in view of the entries
cm the treatment
sheet relating to the pain in the neck and X-Ray photographs it is safe to
accept the Plaintiff's evidence on this
point. The experts also agree, as I
understand their evidence, that the painful condition of the neck has now become
chronic. Mr
Snyckers describes the Plaintiff's neck condition as follows (I am
quoting from page 70 of the record): 'He suffers from a painful
neck which has
not responded adequately to conservative treatment, but although the examination
cannot be taken as being reliable
in view of the finding of the right arm, there
is no
doubt /
13.
doubt that he has complained of his cervical pain from the beginning. In
fact, so severe was the pain initially, that it was suspected
that he might have
fractured the neck. The present X-Rays appearance is compatible with
degenerative cervical spondylosis. The degree
of spondylosis is not unusual at
this age group and in itself does not constitute proof of an injury, but it is
reasonable to accept
that an aggravation of a pre-existing spondylotic condition
causing neck pain has occurred. Since many of these patients with marked
cervical spondylosis are painfree, it does not necessarily follow that he would
have developed symptoms of his cervical spondylosis
in any case although in the
normal event some degree of discomfort would have been expected with a high
degree of probability. The
degree of neck pain that he now complains of, cannot
be assessed objectively other than from what the patient states from the
clinical
examination which was referred to above, from the way in which it
influences the patient's way of life and from the quantity of analgaesic
medication that he consumes.'
Since the Plaintiff's account of his experience
of /
14.
of pain given to the experts is suspect, however, I do not think that the
Plaintiff's evidence that he had not experienced pain in
his neck at all before
the 1978 accident should be accepted at face value. To some extent his evidence
is supported by the witness
Thompson who stated that he had been in charge of
the First Aid Station at the Plaintiff's place of employment and that he had
never
received a complaint from Plaintiff about his health, or a request for
medicine of any kind. Venter also stated that the Plaintiff
had never before the
1978 accident complained to him about his health.
6.
The Plaintiff was discharged
from hospital on 21st December, 1978, that is five days after
admission.
7.
The Plaintiff received
physiotherapeutic treatment for one month and some weeks (according to the
evidence of Freddy Maboa). It is
probable that the treatment was for the
Plaintiff's neck injury only. There was no evidence that it related to his right
arm or leg.
But Maboa states that in January
the
Plaintiff /
13.
Plaintiff walked with a stick. Later his body was bent to one side.
Plaintiff's use of a walking stick is, however, consistent with
his knee
injury.
8.
The Plaintiff returned to
work on 3rd January, that is 12 days after he had been discharged, from the
hospital. I cannot determine
whether the Plaintiff was possibly fit to return to
work before the lapse of that period.
9.
Mr
Froman expressed the view that the Plaintiff's hemipares is first manifested
itself immediately after the accident in 1978. Mr
Snyckers
holds the view that the Plaintiff must have
suffered a serious paralysis of the right arm (if not the leg on that side) in
the 1944
incident which could have caused him to have been detained in hospital
for about two to three months. It will be remembered that
the Plaintiff stated
that he returned to work within a month from the date of the injury. But, of
course, this Court cannot accept
that evidence as being reliable.
10. Since the Plaintiff sustained the head injury
in /
16
in 1978 more than 2 /2 years have elapsed. No evidence other than that of the
Plaintiff has been placed before the Court to enable
it to find how the
condition of which the Plaintiff complains had developed or progressed over that
period. But Dr Froman examined
the Plaintiff on 8th January, 1981 and
established the existence of the hemiparesis.
11. I accept Mr Snyckers' evidence in regard to
the hemiparesis (although the
proposition
which he put forward was not put to Mr Froman
for comment)
that statistically the Plaintiff's
age at the time of the 1978 accident was
an
age which fell into the pattern of this type
of phenomenon and further according to Mr Snyckers the same applies to his first
experience of pain due to degenerative cervical
spondylosis.
12. I can find no fault with the opinion expressed
by Dr Froman and I accept
the probative value
of the authority quoted by him. On that
footing the
head injury sustained in 1978
depleted the Plaintiff's pool of neurons
below
the level at which the mouth and right limbs
could function
normally. But I am no less
impressed /
17.
impressed by the view of Mr Snyckers that the massive damage done to the
brain of the Plaintiff was caused substantially, if not entirely,
by the head
injury received in 1944. I annex hereto a photo-copy of the article in the
Journal of Neurology to which Mr Snyckers
referred which is marked 'I'.
According to Mr Snyckers the long term effects of the removal of certain brain
tumours may be compared
with the long term effect of extensive blunt head
injuries which have resulted in extensive scarring such as revealed by the brain
scan photographs in this case. Mr Snyckers drew, attention to the view of the
authors of the article which they expressed on page
29 as follows:-
'It is our opinion that development of the progressive vascular insufficiency
of the ageing process, i e 'arteriosclerosis', will
rob enough blood from the
already potentially devascularised cerebral tissue in the immediate vicinity of
the old operative scar
to precipitate ischemia and
secondary /
18.
secondary parenchymal (neuronal) damage.'
On page 32
the authors state:
'Finally, the same pathological process might be responsible for some of the
so-called 'late post-traumatic complications', generally
attributed to
post-traumatic 'atrophy' or
'porencephaly'.
Basically it was Mr Snyckers' view,
subject
to a concession in favour of the Plaintiff with
which I shall deal later, that the ageing
process in the main has caused the hemiparesis
to manifest itself and that that stage arrived
at some indeterminable time before the 1978
accident. Its first presence might have
been so subtle that the Plaintiff himself
did not appreciate it until he was in hospital
when he had occasion to examine himself in
a relaxed atmosphere.
13. There is no reliable direct evidence to support the Plaintiff's claim
that there was a manifestation of grave hemiparesis immediately
after the 1978
incident. I have only the Plaintiff's word as evidence that after he
regained /...
19.
regained consciousness in the hospital he found his right limbs to be
paralysed. The fact that he was discharged five days after the
admission and
that he resumed work twelve days later militates against that possibility.
14. Mr Snyckers has conceded (fairly I think) that the 1978 incident cannot
be entirely dismissed as irrelevant to the Plaintiff's
present condition, or as
a mere coincidence. He has conceded that on the probabilities the 1978 incident
caused some 'slight advancement
in the Plaintiff's condition'. He was of the
view that that advancement was not significant in the context of the
contingencies which
were introduced by the 1944 incident and having made that
concession in relation to time, he was not prepared to concede that in
addition
the 1978 incident caused an increase in the intensity of the paresis, that is,
an aggravation thereof. As I understand his
evidence such advancement means one
in relation to the Plaintiff's age. He was reluctant to express an opinion as to
the period of
such advancement but after questioning by me he said that from
a /
20.
a practical point of view one could regard the Plaintiff as having aged as a
result of the 1978 accident by a period which could
vary from a veritable moment
of time to a maximum of one year.
15. Both Mr Froman and Mr Snyckers impressed me as experts in their field and as
witnesses who conscientiously attempted to identify
the facts on which their
opinions were to be based. Both reached their opinions on firmly grounded
conclusions in respect of the
Plain-tiff's condition. Each of them was prepared
to make concessions adverse to the side on whose behalf he was testifying.
I have come to the following conclusions in respect of the main issues on which
the two neurosurgeons testified. I am impressed by
the evidence of Mr Snyckers
to the effect that the hemiparesis first revealed itself at a time when, having
regard to the history
of the Plaintiff and his age, it was to be expected as a
product of the ageing process and that the 1978 injury did not play a
significant
part in the causation of the hemiparesis
now /
21 .
now found to exist. I also accept as completely reliable the view of Mr
Froman that it is likely that the head injury which the Plaintiff
received in
1944 made him extremely vulnerable to extensive brain damage in the event of a
further head injury such as that which
he probably received in 1978. It is my
view that the opinions of the two experts do not clash; they supplement each
other.
16. On a conspectus of the evidence of Majola, Thompson, Delagey, Freddy
Maboa, Venter and the evidence which the Plaintiff gave in
Court, I find that
the Plaintiff has shown on a balance of probability that prior to the collision
in 1978 he was completely unaware
of any weakness in the right side of his face
and of any impediment of speech and any weakness in his right limbs. Nor, I
find, had
the Plaintiff developed chronic pain in his neck. There is no evidence
that any person noticed anything abnormal about the Plaintiff
or that his neck
injury troubled him before the accident in 1978. Although the Plaintiff has been
shown to have given inaccurate
or indeed
false /
22.
false accounts of his physical condition to the two neurosurgeons, I attach
some value to his evidence that for a period of about
34 years before the 1978
collision he led a life which was symptom free of his neck condition and any
brain damage. The Plaintiff
must have received a severe jolt of the neck in the
accident in 1978 and that probably caused commencement of the phase of chronic
pain. It is not possible to ascertain the force with which the head injury was
inflicted in the 1978 accident or to quantify the
extent to which that injury
caused loss of the Plaintiff's brain cells. While fully taking into account the
evidence of Mr Snyckers
I have come to the conclusion that the 1978 head injury
should not be dismissed as irrelevant or as a mere coincidence. Indeed, in
my
view, Mr Snyckers' concession that there was a 'slight advancement' of the
Plaintiff's hemi -paresis is an admission that the
1978 collision played some
part, albeit slight, in the development of the Plaintiff's present condition. I
am of the view that the
hemi-paresis of the Plaintiff first manifested
itself /
23.
itself immediately after the 1978 accident and
has become more marked since that date. In my judgment the Plaintiff has
discharged
the onus of showing a causal relationship between the 1978 head
injury and his present condition, whether on the basis that it was
'precipitated' or 'advanced' on the evidence of the expert witnesses."
In considering the quantum of damages the learned Judge had regard to the
principle that a wrongdoer must take his victim as he finds
him but that the
wrongdoer is not required to compensate his victim for pain, disability or
discomfort which the latter would have
suffered as a consequence of a
preexisting physical impairment or condition. For this proposition he referred
to the judgment in
the matter
of /
24.
of Burger v Union Natal South British Insurance Company,
1975(4) SA 72 (W) at 76 A-D.
The judgment proceeded as follows:-
"Mr Snyckers stated that having regard to the Plaintiff's history and
especially his age it was probable that he would have developed
the symptoms
which were found in hospital in 1978 at about that time and Mr Froman's evidence
in no way controverts that opinion.
On the other hand Mr Snyckers said that no
medical expert could just before the accident have prognosticated the progress
of the
hemi-paresis or spondylosis with any measure of accuracy. It follows that
I must be cautious in my approach to fixing the quantum
so that I ensure that
the amount fixed will not exceed a measure in excess of that attributable to the
contribution of the 1973 collision
to the Plaintiff's condition. This is a case
where the evidence does not enable me, with any measure of certainty, to assess
the
degree in which the
1978 /
25.
1978 collision contributed to the Plaintiff's disabilities
and to make an assessment of the Plaintiff's damages by mathematical
computation.
I am obliged therefore:-
'to take an overall view of the probabilities, possibilities and
contingencies and to fix a figure which is a matter of impression
rather than
calculation but which seems to me to reflect the fairest approach to
compensation that I can reach'. (See Burger's case
supra at 77B)"
Sub voce "Future Medical Expenses" the judgment reads:-
"The Plaintiff stated in evidence that since the accident he experiences pain
in the neck, approximately twice a week but that two
'Aspirin' tablets give him
relief. I accept that the Plaintiff will reasonably in the future have to seek
medical treatment for the
pain caused by his spondylotic condition, may have to
buy more or more expensive analgaesics and require physio-therapeutic treatment.
What such advice and medical
treatment /
26.
treatment will cost I do not know, nor am 1 able to determine
the degree to which the neck injury sustained by the Plaintiff in the
1978
accident contributed or will contribute to the pain which he will experience.
According to the evidence the price of a packet
of 48 'Disprin' tablets (which
constitute a suitable but inexpensive analgaesic) costs about R3,50. I think it
fair and reasonable
to fix the future medical expenses in so far as they relate
to the neck injuries sustained in the 1978 collision at R250,00."
Dealing with "General Damages" the learned trial Judge said:-
"An award under this head must reflect an allowance for-
1. the acute neck pain suffered by the
Plaintiff in hospital and for some indeterminable time thereafter and which
after his discharge from hospital necessitated physiotherapy;
the pain in
the /
27.
the Plaintiff's back associated with haematuria; the pain caused by contusion
of the Plaintiff's ribs and the knee;
2. the probability that the condition of
the Plaintiff's neck developed into a chronically painful condition as a
direct consequence of the collision;
3. the head injury sustained in the accident
on 16th December, 1978 and
the fact
that it either 'precipitated' or 'advanced' the hemi-paresis which has since
become discernible in the right side of the face and
the right limbs. On the
probabilities the head injury converted a contingency in respect of hemi-paresis
into actuality;
4. The onset of hemi-paresis caused an ad
vancement of the Plaintiff's
limitation
of work opportunity. Cognisance must
be taken of the impairment of his earning capacity in this respect."
The main dispute between the two experts
as /
28.
as far as the hemiparesis is concerned may briefly be stated
as follows: While Mr Froman accepted that the 1944 injury was a serious
injury,
he was not prepared to concede that that injury by itself was a contributing
cause of the symptoms which manifested themselves
in the appellant subsequent to
the I978 injury. . The 1944 injury, he said, was a predisposing factor in the
sense of rendering the
appellant vulnerable to future injury but it was the
1978" injury which caused the appearance of the symptoms demonstrated by the
appellant after the 1978 insult. His evidence, properly interpreted, means that
but for the 1978 injury the appellant might never
during his life-time
have /
29.
have experienced the disability from which he
suffered after the 1978 injury. Mr Snyckers, on the other hand, was of the view
that
the 1944 injury would, at about the time of the second injury, have
resulted in the symptoms which presented themselves after the
1978 injury. He
expressed the view that some disability caused by the 1944 injury might even
have been present before the 1978 injury
but that the appellant might not have
been consciously aware thereof and that to lay persons it might have been barely
noticeable,
if at all. In his report, prepared on 25 August 1981 after he had
examined the appellant and taken a brain scan,he stated that during
the
examination the appellant
demonstrated /
30.
demonstrated unphysiological signs of weakness of the right
hand, which appear to be either consciously or sub-consciously manufactured.
The
distribution, he said, is also in keeping with the injury sustained and in all
probability his right hemiparesis is due to the
injury that he sustained some
years back and not to the 1978 accident, particularly since his period of
unconsciousness following
the accident was three hours, which is hardly severe
enough to cause such a defect. He said in his report:-
"It is therefore necessary to try and establish whether or not the patient's
condition prior to the accident had in fact shown a return
to absolute normality
as he states it had and that in fact his early post-traumatic condition was as
he states, since the only
neurological /
31.
neurological deficit found at the time of
admission by the admitting officer was a possible mild facial paresis. The note
of the 18th
December indicates no statement regarding a right hemiplegia or
hemiparesis and the nursing notes fail to refer to such a hemiplegia.
In
addition he appears to have been in hospital for three days and not three
months, which indicates that his recollection is not
accurate."
Under the heading "Cosmetic Impairment" Mr Snyckers reported that the
appellant "has a mild right facial palsy of an upper motoneurone
type which is
visible, but in my opinion is most likely to have pre-dated the accident".
In evidence Mr Snyckers confirmed the view which he expressed in his report
with this
qualification /
32.
qualification, as I read his evidence, that, whereas he had
formerly held the view that the second injury was entirely irrelevant,
he now
conceded that the 1978 injury might have advanced the onset of the disability
which would in any event have manifested itself,
by not more than one year. He
made this concession
after having listened to some of the evidence and
been
told what the other witnesses had said.
In view of this diversity in viewpoints
counsel for the appellant
submitted that the learned
trial Judge erred in the view expressed in paragraph
15 of the facts found proved that the opinions of the
two experts did not clash and that they supplemented
each /
33.
each other. He also erred, it was submitted, in finding that
Mr Froman's evidence in no way controverted the opinion expressed by
Mr Snyckers
that, having regard to the plaintiff's history and especially his age, it was
probable that he would have developed the
symptoms which were found in hospital
in 1978 at about that time.
I agree with counsel that the learned Judge did
err in the respects referred to by counsel. The two viewpoints seem to me to be
irreconcilable.
Mr Froman was not prepared to concede that the appellant would,
but for the second injury, have developed the hemiparesis in the
normal course
of the ageing process. He maintained that the appellant would only have
developed
it /
34.
it if he had a burst blood vessel or if he grew a tumour, or
suffered a major stroke but it would not have happened in the natural
course of
events. That a young individual who suffered such an injury as the 1944 one
"should have the stigma for the rest of his
life that he will as a matter of
course or necessity show premature change is a postulate which I haven't heard
previously", he testified.
This view of his also emerges from the following
evidence given by him under cross-examination: -
"Then only one last question, doctor, what other precipitations could have
caused in the normal course of events such start of
degeneration /
35.
degeneration except for as you aver the accident or as Dr Snyckers aver the
inset
of age? The list is encyclopaedic, it
starts with head injury, stroke,
with persistent severe untreated high blood pressure chronic abuse of drink or
drugs, diabetes, syphilis.
As I say those will represent the most common causes
of mental ... (inaudible, both speaking together) carbon monoxide, use of a
brazier in a closed room. All of these things are possible.
I think you also yesterday mentioned cold, is
that correct? Yes, if you had a profound
drop in body temperature which was sustained
and there was a period of coma with that.
COURT: What do you say, coma or cold?
Cold, my Lord, but we are talking
now of a specific hyperthermic episode, where a man gets drunk, lies in a pipe
overnight ..
Exposure? And he is found exposed the
next morning and unconscious. We are talking now about an extract situation
and the list as I say is endless but that is the phrase
of the question and
therefore I include it."
For /
36.
For this Court to interfere and increase the
amount of damages, it must, however, despite the misdirection, be persuaded that
the
learned Judge was wrong in the final result. He would, of. course, be so
wrong if Mr Froman's opinion is to be preferred to Mr Snyckers',
as adjusted in
his evidence. In submitting that full effect should be given to Mr Froman's view
counsel criticised Mr Snyckers' evidence
and submitted that, inasmuch as he
relied substantially on the evidence of Venter, who turned out to be a
singularly unobservant
person, Mr Froman's evidence should have been preferred
to that of Mr Snyckers.
Venter's evidence related mainly to the
dispute /
37.
dispute as to whether the facial paresis was
present before the 1978 injury. If there was no difference in the facial
features of
the appellant after the 1978 accident, as Venter deposed, the
inference might justifiably be drawn that the mild facial paralysis,
which
Venter as a layman did not observe, was present before the 1978 accident, and
that this was consistent, negatively, with the
theory propounded by him, Mr
Snyckers reasoned. He did not, however, seem to attach much weight to the
evidence of Venter. In view
of the concession that Mr Snyckers made that the
onset of the hemiparesis might have been advanced by the 1978 injury and the
finding
of the Court a quo
that /
38.
that the hemiparesis manifested itself immediately after the
1978 accident. Venter's evidence does not appear to me to be very
relevant.
On the vital issue as to whether advancing years super imposed on
the 1944 injury would in any event, at about the time the appellant
sustained
the second injury or soon thereafter, have caused the hemiparesis or not, the
trial Judge seems to have accepted the evidence
of Mr Snyckers. He said he was
impressed by Mr Snyckers' evidence in this regard and the authority he relied on
— the authority
which the learned Judge quoted in paragraph 12 of the
facts found to have been proved and which propounded a proposition
which /
39.
which Mr Froman had apparently not heard of. In
view of this finding questions such as whether the hemiparesis was present
before
the 1978 accident or whether the appellant simulated or not appear to me
to be largely irrelevant. In view of the fact that the onus
was on the appellant
to prove the cause of the damage, the trial Court did not, in my view err in
finding, substantially, as I read
the judgment, that, regard being had to the
1944 injury, the hemiparesis was largely caused by the natural process of ageing
with
a slight advancement of such process caused by the 1978 injury.
As far as the neck pathology is concerned, the two neuro-surgeons were ad
idem that it was probable
that /
40.
that the pain may disappear completely when the
joints
between the vertebrae became so worn eventually as
to almost effect
a rigid back, Mr Snyckers said.
It was common cause between the two experts
that no
further physiotherapy was needed. Under these cir
cumstances, even
though the two experts had at one stage
agreed on a figure of R800 for future
medical expenses
for the neck pathology, the learned trial Judge did
not,
in my view, err in awarding a sum of only R250 in
this regard.
The appeal is accordingly dismissed, with costs.
TREVONE,JA)CONCUR JUDGE OF APPEAL
HEFER, AJA )