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1998
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[1998] ZAWCHC 6
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Troos Transport t/a Ekonoliner Luxury Coach Lines v Abrahams (A923/97) [1998] ZAWCHC 6; 1999 (2) SA 142 (C) (18 February 1998)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO. A923/97
TROOS TRANSPORT t/a
EKONOLINER
LUXURY
COACH LINES
.................................................................................
Appellant
and
FAIZEL
ABRAHAMS
.....................................................................................
Defendant
JUDGMENT DELIVERED
ON 18 FEBRUARY 1998
CONRADIE J.
The respondent is a
thirty-six year old roofing carpenter who lost his sight due to a
head injury sustained when the bus in which
he was a passenger
capsized as a result of the negligence of a servant of the appellant.
The matter comes before us pursuant to
leave granted on petition to
the chief justice.
The liability issue
was settled. Thereafter, at a pre-trial conference held on 16 May
1996, the respondent's general damages were
agreed at R100 00-00.
These were claimed for "shock, pain, suffering, loss of the
amenities of life and disability."
The lost amenities were
alleged, generally, to be those "associated with a person who
has lost his eyesight" and, specifically,
the inability to enjoy
carpentry, gardening, fishing and walking.
After the loss of
amenities claim had been settled, a further claim was introduced by
amendment, a month before the trial on quantum
was to resume on 21
October 1996. This claim read simply "Cost of attendant / driver
R600 514-00." In response to a request
for trial particulars the
respondent specified that he required an "assistant/ driver"
as a full-time employee working
a 9.2 hour day five days a week. His
duties would be to drive the respondent to his mosque three times a
day, to collect the children
from school and to assist the respondent
in shopping and other duties. He would have to possess a driver's
licence for light motor
vehicles and should preferably be a Muslim
with a medical background, having successfully completed a course at
the Cape Town Blind
Society.
Mr
McDougall
who appeared for the
plaintiff at the trial again represented the respondent before us. He
contended that the learned judge
a
quo
had correctly found that the
claim for an 'assistant/driver' was entirely distinct from the
settled claim for loss of amenities
of life, and that is was, in
essence, a claim for the increased costs of getting about to which
the respondent's blindness exposed
him. It was hence a claim for
future loss in the form of increased living expenses.
Mr
Mouton
for the appellant contended
on the other hand that the claim was one for the amelioration of the
respondent's loss of amenities
and was, therefore, the impermissible
extension of a claim which had already been settled.
The
court
a quo
found that there was no duplication of the claim for loss of
amenities of life. The judgment, however, proceeds not on the footing
that the respondent was entitled to the increased cost of transport
brought about by his disability, but on the footing that the
only
practical way to satisfy the respondent's desire to get out of the
house was to give him a full-time chauffeur who would also
help him
move around. The learned judge dealt with the evidence as follows -
" There was a
considerable amount of evidence concerning what plaintiff used to do
before the accident and what he hoped to
do and wished to be enabled
to do now. Such activities include going shopping, paying accounts,
attending a gymnasium, going fishing,
taking his children to school,
and, most importantly, for plaintiff is a deeply religious man,
attending the mosque.
These
are symptoms or manifestations of plaintiff's basic need and desire
to get out of the house where, as his counsel
Mr
McDougall
put it, he feels
imprisoned. It will be apposite to quote some passages from
plaintiffs evidence."
Then, after citing
passages from the respondent's evidence, he continued :
" What all this
is saying is that plaintiff wants to get out into the world, to do
things that a sighted person takes for granted,
to mix with people,
to do household chores, to be an active parent and to practise his
faith.
No one can deny him
these pleasures which will in some objectively small but to plaintiff
important way restore to him some enjoyment
of human intercourse and
some self esteem.
Various
expedients, short of the provision of transport, were suggested to
plaintiff. The inadequacy or inappropriateness of these
proposals is
self evident. Thus it was suggested that plaintiff could use an
exercise bicycle instead of going to a gym, but this
would deprive
him of the company and fellowship of others. It was also suggested
that he could go for a walk with his eldest daughter,
but this would
be additional to and not instead of transport. Plaintiff said his
religious beliefs did not allow him to have a
'
guide-dog
'
or any dog, kept in the house.
Plaintiff
had previously relied on friends to take him to the mosque, on a
proamico
basis, but this had not worked; the friends were unreliable and
became uninterested in helping plaintiff."
I am persuaded that
there is no adequate substitute or alternative to what plaintiff
seeks from the court, namely, paid transport
to take him out of the
house, for whatever purpose, of for no purpose at all other than to
escape the confines of four walls."
The
language which the learned judge employs, is, with respect to
Mr
McDougall's
argument, the language
of lost amenities. In
Oosthuizen and
Thompson
1919 TPD 124
E 129 the
court equated the loss of amenities of life with the diminution in
the "joy of living", and it is that "joy
of living"
with which the learned judge is here concerned. A loss of that "joy
of living" is encompassed in the
amount agreed upon. In
Administrator General
,
South West Africa vKriel
1988 3 SA 275
(A) at 288 E-F
Hoexter JA described
the amenities of life as "those satisfactions in one's everyday
existence which flow from the blessings
of an unclouded mind, a
healthy body and sound limbs."
The focus of the
judgment before us is not on increased expenses. Indeed, there was no
evidence about what the respondent's travelling
expenses would have
been had it not been for his injury. This would have been an
indispensable element in proving a claim for augmented
future
expenses. In my view, the claim could not, once the claim for loss of
amenities of life had been settled, have been brought
on the footing
on which it was. It follows that the award, which was not one for
increased living expenses, should not have been
made.
In
case I should err in this conclusion, I should say that there is
another footing on which it seems to me that the award cannot
be
supported. The court
a quo
intended to provide for the cost of an attendant as well as a
chauffeur. The learned judge dealt with the claim in this fashion
-
" All this is
by way of providing a yardstick for an unusual and specialised
situation. Plaintiff has claimed the cost of an
attendant/driver.
Someone who would not only drive him around, but would also be able
to assist him at his destination.
This is in my view a
reasonable claim; it would not do, for instance, for plaintiff to be
taken to a shopping centre and simply
dumped there. Similarly if he
wished to go, say, fishing. At the gym or at the mosque, it is true,
he would be with friends and
like-minded persons who no doubt would
assist him; in such circumstances he would have less need for an
attendant. I am nevertheless
satisfied that on a long term, regular
basis the sort of person plaintiff reasonably requires will fulfil
the dual functions of
driver and attendant.
In discussing the
remuneration of the assistant/driver, the learned judge emphasised
that 'someone more than just a driver' would
be required for this
particular job. He would have to be remunerated at R2250-00 per
month. The discounted value of his services
was actuarially
established at R538 360-00. That was the amount awarded to the
respondent under this head.
The cost of a
personal attendant has been sparingly awarded in the South African
case law. It has, as far as I know, been allowed
only in the case of
aggravated physical injury where there have been pressing medical
indications for the employment of a care
giver, that is to say, where
there has been seen to be a need for assistance, equipment and
facilities directly related to the
injury. I mention the following
four cases as recent manifestations of this approach.
In
Ngubane
v
South African Transport Services
1991 1 SA 756
(A) it was not even in dispute that the appellant who
was permanently partially paralysed by a spinal fracture would need
an attendant.
The court, therefore, did not consider the propriety of
the cost of an attendant.
In
Administrator-General South Africa
v
Kriel
1988 3 SA 275
(A) the cost of an attendant for a young girl who had
been brain damaged by a gunshot would, was not questioned either. She
could
not stand or sit unsupported, could not feed herself, and was
partially incontinent. Clearly, with respect, an attendant in the
form of a nurse/ companion was indicated. (See also
Johannes
Dhlamini
v
Government
of RSA,
Corbett and Buchanan, vol 3
p 554).
In
Bennie
v
Guardian National Insurance Co Ltd
'
(Corbett andBuchanan vol 4 p A3- 34) the domestic servant to whom the
paraplegic plaintiff (who had lost bladder, anal and bowel
sensation)
was held entitled was really also intended to be a nurse-aide. (p.
A3-40.)
Dusterwald
v
Santam Insurance Ltd
(Corbett and Buchanan vol 4 p. A3-45 (at p A3- 85) was a case in
which it was common cause that the plaintiff was entitled to the
cost
of a full-time domestic servant and a gardener/handyman. The
plaintiff was confined to a wheel chair and incontinent of bladder
and bowels. He had no sensation below the level of a lesion at the
fifth dorsal vertebra. He was vulnerable to pressure sores.
It is
clear from the report that the plaintiff had grave difficulty in his
personal management.
There
is another class of case in which the cost of a domestic servant or
gardener has been awarded to a plaintiff. That is where
he was no
longer able to perform domestic or gardening services himself. The
rationale for an award in this kind of case is that
the plaintiff is
to be compensated for the loss of value of prospective work. It is
really a claim which is equivalent to the income-eamer's
claim for
loss of earnings. The best example of such a case is
Erdmann
v
Santam Insurance Co Ltd
1985 3 SA 396
(e) at 406-407 where the court refers, with apparent
approval, to
Daly
v
General Steam Navigation Co Ltd
[1980] 3 All ER 696
(CA); there is also
Hutchings
v
General Accident Insurance Co Ltd
,
Corbett and Buchawan vol 3 p. 737 at 745 where the cost of a labourer
to maintain a small-holding, which the plaintiff had previously
managed himself, was allowed. It lias not been suggested that the
respondent's claim falls into this category.
In the present case,
there is no expert evidence that the plaintiff, who has been trained
to be independent in his personal management,
needs an attendant for
medical reasons. The award was not made on this basis. It was made to
generally improve his lot. To my way
of thinking, it would set a
dangerous precedent to allow the injured victim of a delict the cost
of a full-time companion to ease
his burden under circumstances such
as one has here. I do not doubt that all kinds of victims with
disabilities who find it difficult
to get about would like to have
companions to help them be more mobile and generally make them feel
better, but the trend in our
jurisprudence has not been that
expansive and with good reason: the social cost of compensation on
such a generous scale would
be too large a burden to carry. For this
reason, also, I would not have awarded the plaintiff the amount of
R538 000-00.
The
appeal succeeds with costs. The order of the court
a
quo
dated 26 February 1997 is
altered by -
(a) the deletion of
paragraph 2 thereof;
(b) the deletion of
the word and figure "and 2" in paragraph 4 thereof.
J H CODNRADIE
I agree:
G A KUHN
I agree:
C PRISMAN