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[1990] ZASCA 128
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Langley Fox Building Partnership (Pty) Ltd v De Valence (647/88) [1990] ZASCA 128; 1991 (1) SA 1 (AD); [1991] 3 All SA 736 (AD) (4 October 1990)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
CASE NO:647/88
In the appeal of
LANGLEY FOX BUILDING PARTNERSHIP (PTY) LTD
APPELLANT
and
PATRICIA POUPINEL DE VALENCE
RESPONDENT
Coram
: BOTHA, MILNE, STEYN et EKSTEEN JJA, GOLDSTONE AJA.
Date heard: Monday 20 August 1990
Date delivered: Thursday 4 October 1990
2 JUDGMENT
GOLDSTONE AJA:
On 13 August 1982 the respondent, Mrs Patricia Poupinel de Valence, was a
successful audiometrician. She conducted a private practice
in partnership with
a Mr Carter. On that day she was walking on a sidewalk, outside Hunt's Corner, a
building situate in the central
business district of Johannesburg. A wooden beam
had been suspended between two trestles at right-angles across the sidewalk. The
respondent struck the left side of her forehead against the beam. At first the
injury caused thereby was thought to have been minor.
3 However, it has had
the most serious and unfortunate consequences for the respondent. In an action
heard in the Witwatersrand Local
Division, Van Schalkwyk J held that the
appellant, Langley Fox Building Partnership (Pty) Ltd, was negligent in relation
to the erection
of the wooden beam and he ordered it to pay damages to the
respondent in the amount of R181 408,45 and the costs of suit.
The appellant now appeals to this court against the finding that it is liable
to compensate the respondent for any loss sustained
by her. In turn, the
respondent cross-appeals, claiming that she should have been awarded damages in
the amount of R593 070.00.
It is common cause that on the day in question the appellant was engaged in
building operations at Hunt's Corner. More particularly,
in terms of its
contract with the owner of the
4 building, the appellant was engaged in "the
erection and completion of proposed refurbishing and additions to the ground
floor"
thereof. Pursuant to the terms of the contract, the appellant had
employed a number of sub-contractors to perform aspects of the
work. One such
sub-contractor was A Dudley and Sons. Mr D W Dudley gave evidence for the
respondent. He described himself as a director
of the firm. It was employed by
the appellant to install a ceiling under an overhead canopy which protrudes over
the sidewalk at
the entrance to Hunt's Corner. From the evidence of Mr Dudley
and Mr Rogerson, the caretaker of Hunt's Corner, it emerged that on
the day in
question, A Dudley and Sons was probably engaged in the installation and for
that purpose it would have erected a means
of enabling its workmen to have
access to the canopy. That means, according to Dudley, could well have been a
wooden beam suspended
between two trestles.
5 Both Dudley and Rogerson were
somewhac vague as to the events of August 1982. They testified some five years
after the occurrence
and that vagueness is hardly surprising. Neither witness
was able to state positively that the beam into which the respondent walked
was
in fact erected by A Dudley and Sons.
On behalf of the appellant it was submitted in the Ccurt
a guo
, and
again before this Court, that the respondent failed
to establish who erected
the beam into which she walked.
It is the submission that it may have been any one of a number
of
sub-contractors of the appellant or even an entirely
independent contractor such as a painter, electrician, municipal
inspector or signwriter. The learned Judge
a quo
held that
although
the evidence of Dudley was not conclusive upon the
issue, the probability pointed to the beam indeed having
been erected by A Dudley and Sons. I agree. The only evidence
6
beforé the trial Court was to the effect that on the day in question that
firm was on the site and that it would have reguired
scaffolding to be erected
under the canopy. That is where the beam in question was situate at the relevant
time. The defendant placed
no evidence before the Court a
quo
to suggest
that the beam was erected by any other sub-contractor or contractor. The
submission advanced on behalf ot the appellant
is theretore tounded upon nothing
more than speculation.
When she was first called to testify, the respondent was silent as to whether
there were signs in the vicinity of the beam warning
pedestrians of the danger
caused thereby. The absence of such evidence was one of the grounds advanced at
the close of the respondent's
case in support of an application for absolution
from the instance. In refusing that application Van Schalkwyk J held that even
if
warning signs had been erected
7 (and he assumed that they had indeed been
erected) they may have been insufficient co have drawn the attention of the
respondent
to the danger. He said that in the circumstances the proper
precaution might have been the erection of a barrier to ensure that it
was not
possible for anybody to enter the area where a collision with either the
trestles or the beam might have occurred.
The question of warning signs was again raised during the
argument at the
conclusion of the trial. In the course of
his reply on behalf of the
respondent, her counsel applied
at that late stage to reopen her case so as
to lead further
evidence on this issue. The trial was postponed to enable
a formal application to be made. That was done. The application
was
opposed on the ground that at an earlier stage in the
trial the respondent's advisers were aware of this shortcoming
and they elected to proceed without curing it. The application
8 was
granted and the respondent was recalled. She testified to the effect that indeed
no warning signs had been erected in the vicinity
of the beam.
On behalf of the appellant it was submitted that Van Schalkwyk
J erred in
allowing the respondent to be recalled to testify.
In support of that submission counsel relied upon the judgment
of Millin J in
Epstein v Arenstein and Another
1942 WLD 52.
It was there held that where a party, having evidence at his
disposal, deliberately elects not to put it before the court
because of the opinion that it is unnecessary, such party
will not be allowed to reopen his case for the purpose of
leading that evidence. The learned Judge added (at p 62) that
the Court ought to allow it where the evidence in possession of the
party who intended.to lead it was omitted through inadvertence.
(See also the authorities cited in the minority judgment of
Van Winsen AJA in
Mkwanazi v Van der Merwe and Another
1970
9 (1) SA 609
(A) at 627 A - H.)
In an affidavit in support of the application to reopen the respondent's
case, her attorney stated on oath,
inter alia
, that during her
evidence-in-chief he was out of the court room negotiating an agreement with the
appellant's attorney on the quantum
of the respondent's claim for past medical
and hospital expenses. He was unaware that the respondent had not given evidence
relating
to the absence of warning signs and had he been so aware he would have
reminded appellant's counsel to lead such evidence. He added
that:
"I would mention to the above Honourable Court that the Applicant had instructed
me from the time of my first consultation with her
relating to this case that
there were no warning signs present on the pavement in New Street South on the
day of the
10
accident and it was always the intention of the Applicant to give such evidence
in court."
He referred to the fact that an
appropriate averment had been made in the respondent's further particulars for
trial. It is there
alleged that:
"(ii) They (the appellant) displayed no
warning
signs of any description of the presence of
the wood beam;
(iii) They provided no protective barriers which
could or would have prevented such an accident."
A corroborating affidavit from the réspondent accompanied her
application. Her counsel explained to the trial Judge that he
had inadvertently
omitted to question the respondent
11 concerning this aspect of the case. In
this regard he referred to the difficulty which the respondent experienced in
the witness
box owing to her mental condition and more particularly the
adjournments which were requested by reason of her difficulties whilst
she was
testifying. No opposing affidavits were filed by or on behalf of the
appellant.
Appellant's counsel, in opposing the application to reopen the respondent's
case, and again in this Court, placed much reliance upon
the following averment
made in his affidavit by the respondent's attorney:
"9. The reason for the lateness of the application was that both counsel and
myself were of the view, and we still are of the view,
that the Plaintiff has
proved the requisite negligence against the Defendant on the strength of the
evidence presented on her
12 behalf thus far, particularly having regard to the fact that the Defendant
led no rebutting evidence after the application for
absolution from the instance
had been dismissed by his Lordship Mr Justice Van
Schalkwyk."
He went on to state that the
respondent's counsel -
"felt that if our view of the law was incorrect, that it may be prejudicial to
the Applicant if an application to reopen her case
was not
made."
This attitude of the respondent's legal advisers,
submitted counsel, amounted to an election not to lead the evidence in question.
I do not agree. The uncontradicted evidence establishes that the failure to lead
the evidence from the respondent was a consequence
of inadvertence. The real
question
13
is whether the delay in bringing the application to reopen the respondent's
case amounted to an election to abandon the issue or for
some reason disentitled
the respondent from succeeding in the application.
It is true that such an application could have been brought at any time after
the alleged
lacuna
in the respondent's evidence was referred to by the
appellant's counsel, ie. during the argument in support of the application for
absolution. That there was a delay in moving the applicaiton is apparent.
However, delay in pursuing a right does not necessarily
indicate an intention
not to exercise it in the future, ie. an abandonment thereof. At the highest,
the attitude of the respondent's
advisers was one of complacency in the light of
the judgment refusing absolution. But they did nothing and said nothing to
indicate
that the right to make the application was being abandoned by or on
behalf of the respondent. It was simply
1 4 not exercised. There is not even
the suggestion that this right was appreciated by the respondent or positively
contemplat-ed
by her or her advisers. It follows, in my opinion, that the
learned Judge
a quo
was entitled to entertain the application even at the
late stage when it was brought. In approaching the merits of the application
he
fully appreciated that he was called upon to exercise a judicial discretion.In
granting the application the learned Judge took
into account that:
(a) the opposition was founded solely on the alleged election which he found not
tó have been established;
(b) the appellant had led no evidence at all on the issue of liability;
(c) there was no prejudice to the appellant if the evidence was led at a late
stage in the trial;
15
(d) the matter was one of importance to the respondent.
I can
find no reason to interfere with the exercise by the Judge of his discretion.
The appeal must therefore be decided on the basis
that the further evidence of
the respondent was properly before the Court
a quo
.
On behalf of the appellant it was further submitted that the respondent did
not in fact establish that there were no warning signs
erected. It was argued
that on her own evidence, prior to the accident she had her gaze cast upon the
ground ahead of her because
of the bad condition of the paving. She could not,
therefore, say that she would have seen such signs before she collided with the
wooden beam. After the accident, so it was further argued, she was too dazed to
have made a reliable observation. These submissions
must be rejected. In the
16
first place she testified positively that she saw no warning signs before the
accident. Secondly, and more importantly, shortly after
the accident, the
respondent returned to the scene with her attorney and her partner and they
discussed the fact that there were
no warning signs in the vicinity of the
obstruction. Again, no evidence was led on behalf of the appellant to contradict
that evidence.
I come now to consider whether the liability of the appellant has been
established by the respondent. First of all, the legal principles
which are
relevant. The general rule of our law is that an employer is not responsible for
the negligence or the wrongdoing of an
independent contractor employed by him:
Colonial Mutual Life Assurance Society Ltd v Macdonald
1931 AD 412
esp at
428, 431/2;
Dukes v Marthinusen
1937 AD 12
at 17. That is also a general
rule of the English law. However, for well over a century the English courts
have
17 recognised a number of exceptions to it. These exceptions have, so to
speak, been compartmentalised. In
Charlesworth and Percy on Neqligence 7
ed paras 2.140 - 2.148 they are discussed under the general heading of
"Contractor employed to perform a duty thrown by law on employer".
It is said,
that:
"If an employer, who has to perform a duty, imposed on
him either by statute or by common law, makes a contract
with an independent contractor for the performance of
that duty, instead of doing it himself, he is liable
for the negligence of the independent contractor in carrying
it out... The cases, in which a duty is thrown upon an
employer, are: (i) in relation to dangerous things;
(ii) dangers
on the highway; (iii) duties imposed by
statute; and (iv) where an act involves special risk
of damage..."
18
In Fleming,
The Law of Torts
7 ed at 361, some of these categories are
described as a
"disguised form of vicarious liability"
which is
"imposed wherever the defendant is said to be under a 'non-delegable' duty, in
the sense that he cannot acquit himself by exercising
reasonable care in
entrusting the work to a reputable contractor but must actually assure that it
is done - and done carefully. From
a practical standpoint, its most perplexing
feature is the apparent absence of any coherent theory to explain when, and why,
a particular
duty should be so classified..."
19
In
Salmond and Heuston on the Law of Torts
19 ed at 544/5 on the other
hand, one reads the following:
"The liability of the employer of an independent contractor is not properly
vicarious: the employer is not liable for the contractor's
breach of duty; he is
liable because he himself has broken his own duty. He is under a primary
liability and not a secondary one.
Hence it is misleading to think of the law on
this point as a general rule of non-liability subject to a.more or less lengthy
list
of exceptions. The real question is whether the defendant is, in the
circumstances of the particular case, in breach of a duty which
he owes to the
plaintiff. If the plaintiff proves such a breach it is no defence to say that
another has been asked to perform it.
The performance of the duties, but not the
responsibility
20
for that performance, can be delegated to another. This seems to be all that is
meant by talk of 'non-delegable duties'".
It was substantially in
that way that Stratford ACJ understood the English authorities in his judgment
in the only case in which,
until now, this question has received detailed
consider-
ation in this Court. viz
Dukes v Martninusen
(
supra
). The
learned Acting Chief Justice (at 18) adopted the view expressed in
an article
which appeared in the 1934, vol 50 Law Quarterly
Review that all of the
so-called exceptions to the general
rule of non-liability are instances which rest
"upon the existence of a duty of the employer the failure to perform which has
caused the injury".
(The article, which was written by Stephen
Chapman, appears
21
at 71 and not at 571 as reflected in the reported judgment). Still with
reference to the English law, Stratford ACJ says (at 18):
"In other words, it is the existence of a duty on the part of the employer of an
independent contractor that determines his liability
for injury resulting from
the operation which he has authorised the contractor to dc. If there is no duty
to take precautions against
injurious consequences of the work authorised there
can be no liability of the author for those consequences."
Then,
at 20, the learned Acting Chief Justice continued:
"Having referred to the great number of cases quoted
in argument and mentioned in the above-mentioned article,
I come unhesitatingly to the same conclusion as did the
22
learned author of that article so far as English law is concerned, and that is,
that in cases like the one now before us, the liability
of an employer must
result from the breach of a duty owed by the employer to the person injured in
consequence of such breach."
The learned Acting Chief Justice
then turned to consider the South African law on the subject. He referred to the
fact that in a number
of judgments in the provincial divisions the English law
had been followed. At 23 the learned Judge continued:
"This does not necessarily mean that this Court should do the same. If the
decisions had disregarded fundamental principles of our
law, we might have to
reassert those principles even at the cost of reversing judgments of long
standing. Fortunately, in my judgment,
we are faced,
23 in this
case, with no conflict between the two systems. The English law on the subject
as I have stated it to be is in complete
accord with our own, both systems rest
the rule as to the liability of an employer for any damage caused by work he
authorises another
to do upon the law of negligence... In all questions of
negligence that imaginary person, the reasonable man, must be invoked and
must
be made to pronounce his suppositious view. What should a reasonable man
anticipate? What should he do to avoid possible injurious
consequences of his
acts which reasonably he should anticipate? Questions of negligence are nearly
always difficult, and it has been
said more than once in this Court (quoting
Beven, I think) that the question of negligence can never be disentangled from
the facts.
It follows from the law as I have stated it to be that the first and
crucial question in this case is to ascertain on the facts of
24 the case where there was a duty on the employer who authorised the demolition
of these buildings to take precautions to protect
the public using the highway
from possible injury. If there was such a duty it could not be delegated and the
employment of an independent
contractor is an irrelevant consideration. The duty
if it is to be inferred must arise from the nature of the work authorised taking
into consideration all the circumstances of its execution such as, in
particular, the place of such execution."
It follows from the
passage just cited that in every case
the answer to the question whether or
not the duty arises
must depend on all the facts. Bearing that fundamental
approach
in mind, there are passages elsewhere in the judgment which
appear to
suggest that there might be a liability
as an
invariable rule
whenever the work entails danger to the public.
25
Thus, for example,. at 20, Stratford ACJ cites with approval the following
passage from the judgment of De Villiers CJ in
Newman v East London Town
Council
12 SC 61
at 72:
"But assuming that the negligent acts of the contractor were not the acts of the
defendants, the obvious question arises. Why did
they not adopt some precautions
against such negligent acts? I can well understand the doctrine that a person
who employs an independent
contractor upon works which, in the ordinary course,
would entail no danger to the public, is not liable for incidental injuries
caused by the contractor's negligence. But, where, as in the present case, the
work is to be performed upon and near a public road,
and it may reasonably be
anticipated that, without due precautions, the safety of the public using the
road will occasionally be
endangered by the carelessness of the workmen, it is
surely an act of
26
hegligence to order the work, without the precautions."
The same
test was appliéd by Stratford ACJ in his application of the facts to the
law. At 24 he said:
"Thus the test in this case narrows down to the question whether the demolition
of these buildings abutting on tne highway was a
dangerous operation in the
sense that public safety was imperilled by it unless precautions were taken to
obviate that peril. If
the answer is in the affirmative, the law casts upon the
author of the operation the duty to take those precautions, and the breach
of
that duty is called
culpa
or negligence."
This test again
imposes an invariable liability upon the employer in
every
case where the
work involves an operation which is likely to create a danger to the public.
That approach
27
is repeated when, after finding that the demolition of the buidings in
question would create such a danger, Stratford ACJ at 27 refers
with approval to
the following words of A L Smith LJ in
Holliday v National Telephone Co
(1899) 2 QB 392
at 400:
"In my opinion... it is very difficult for a person who
is engaged in the execution of dangerous works near a
highway to avoid liability by saying that he has employed
an independent contractor, because it is the duty of
a person who is causing such works to be executed to
see that they are properly carried out so as not to occasion
any damage to persons passing by on the highway."
Stratford ACJ
at 29 expressed the following conclusion:
"To conclude, then, the demolition of these buildings
28
abutting on the road was a dangerous operation in the sense that it might
reasonably be anticipated that, without due precautions,
the safety of the
public using the road might occasionally be endangered (I have paraphrased LORD
DE VILLIERS' words quoted above).
In such circumstances it was the duty of the
employer to see that such precautions were taken, and her failure to do so was
negligence
and she is liable in this case for the consequences of that
negligence."
That
Dukes v Marthinusen
laid down a wide and
non-delegable duty was the understanding of Colman AJ in
Crawhall v Minister
of Transport and Another
1963 (3) SA 614
(T) at 617 G - H where the learned
Judge said:
"... if work has to be done on premises to which the
public have access, and that work can reasonably be
expected
29
to cause damage unless proper precautions are taken,
the duty of the occupier to see that those precautions
are taken and thatthe premises are safe persists, whether
he does the work himself or through his own servants
or delegates it to an independent contractor. That seems
to me to be the effect of the judgment of Stratford ACJ
in
Dukes v Marthinusen
1937 AD 12..."
This formulation of
tke rule in effect, though not in terms, imposes upon the employer of an
independent contractor a kind of vicarious
liability unknown in our law of
delict. In my respectful opinion, on a proper analysis of his judgment,
Stratford ACJ did not intend
to depart from the well established principles of
our law to which he referred in the first part of his judgment.
In
Rhodes Fruit Farms Ltd and Others v Cape Town City Council
30
1968 .(3) SA 514 (C), Van Wyk J was apparently alive to the
wide implications which some of the
dicta
in
Dukes v Marthinusen
might have. However, he gave the judgment of Stratford ACJ a narrow
interpretation. At 519 D he said:
"After a careful examination of that decision I come to the conclusion that it
lays down no more than that if work entrusted to an
independent contractor is of
such a character that, if the contractor does the work and no more, danger will
ensue, then liability
for damages remains with the employer on the failure of
his contractor to take precautions in addition to doing the work. It is the
duty
of the employer to take such precautions as a reasonable person would take in
the circumstances. I do not, however, consider
Dukes
case as an authority
for the proposition that the employment of a skilled independent contractor,
where the extent of the danger
31 and the reasonably practicable
measures to minimise it can only be determined by such skilled person, cannot in
any circumstances
constitute a discharge of the employer's aforesaid duty. No
such principle exists in Roman-Dutch law.
There may well be situations in which a reasonable person would rely solely on
an independent skilled contractor to take all reasonable
precautions to
eiiminate or minimise damage to another, and in such circumstances it could not
be said that he was negligent if such
contractor fails to act reasonably.
In my opinion, therefore, the duty to take care where the work undertaken is
per se
dangerous could in some cases be discharged by delegating its
performance to an expert."
In my judgment, the correct approach
to the liability of an
32
employer for the negligence of an independent contractor is to apply
the fundamental rule of our law that obliges a person to exercise
that degree of
care which the circumstances demand. In
Cape Town Municipality v Paine
1923 AD 207
at 217 Innes CJ said:
"The question whether, in any given situation a reasonable
man would have foreseen the likelihood of harm and governed
his conduct accordingly, is one to be decided in each
case upon a consideration of all the circumstances.
Once it is clear that the danger would have been foreseen
and guarded against by the
diliqens paterfamilias
, the
duty to take care is established, and it only remains
to ascertain whether it has been discharged. Now, the
English Courts have adopted certain hard and fast rules
governing enguiries into the existence of the duty and
the standard of care required in particular cases.
Speaking
33
generally, these rules are based upon considerations which, under our practice,
also would be properly taken into account as affecting
the judgment of a
reasonable man; and the cases which embody them are of great assistance and
instruction. But, as pointed out in
Transvaal Estates v. Golding
and
Farmer v. Robinson Gold Mining Co.
(1917, A.D., p. 18 and p. 501), there
is an advantage in adhering to the generai principle of Aquilian law and in
determining the
existence or non-existence of
culpa
by applying the test
of a reasonable man's judgment to the facts of each case. The larger latitude
allowed in such an enquiry is
to be preferred to restriction within the more
rigid limits of the English rules."
Whether the circumstances
demand the exercise of care will depend upon proof that the employer owed the
plaintiff a duty of care and
that the damage suffered was not too remote.
34
In this regard it is as well to have regard to the following passage from the
judgment of Schreiner JA in
Union Government v Ocean Accident and Guarantee
Corporation Ltd
1956 (1) SA 577
(A) at 585 A - E:
"Without venturing unnecessarily near to the problem whether remoteness rests
upon foreseeability or upon directness, one must recognise
some relation between
remoteness and the duty of care. According to ordinary usage the former deals
with the extent of the defendant's
liability to the plaintiff, whoever he may
be, the latter with the persons who are entitled to sue the defendant. The
expression
"duty of care" has sometimes been criticised as introducing an
unnecessary complication into the law of negligence, but, apart from
the fact
that it is endorsed by considerable authority in this Court, it is
so
35
convenient a way of saying that it is the
plaintiff himseif and no other, whose right must have been invaded by the
careless defendant,
that the complication seems rather to be introduced by the
effort to avoid its use. The duty of care is in our case law rested upon
foreseeability and this gives rise to a measure of artificiality. But this is
really unavoidable for, if there is to be control over
the range of persons who
may sue, the test must be that of the reasonable man; what he would have
foreseen and what action he would
have taken may not be calculable according to
the actual weighing of probabilities, but the device of reasoning on these lines
helps
to avoid the impression of delivering an unreasoned moral judgment
ex
cathedra
as to how the injurer should have behaved. The duty of care fits
conveniently into the reasoning process and
36 even if it is no more than a manner of speaking it is a very useful
one."
In
Peri-Urban Areas Health Board v
Munarin
,
1965 (3) SA 367
(A) the issue concerned the liability of the employer of an
independent contractor for damages arising from the death
of a third party
who was injured in consequence of the dangerous
operations being performed by
the contractor. In Lhe coursc
of his judgment in terms of which the
employer's liability
was confirmed, Holmes JA said, (at 373 E - H):
"Negligence is the breach of a duty of care. In general, the law allows me to
mind my own business. Thus, if I happen to see someone
else's child about to
drown in a pool, ordinarily I do not owe a legal duty to anyone to try to save
it. But sometimes the law requires
me to be my brother's
keeper.
37
This happens, for example, when the
circumstances are such that I owe him a duty of care; and I am negligent if I
breach it. I owe
him such a duty if a
diligens paterfamilias
, that
notional epitome of reasonable prudence, in the position in which I am in, would
-
(a) foresee the possibility of harm occurring to
him; and
(b) take steps to guard against its occurrence.
Foreseeability of harm to
a person, whether he be
a specific individual or one of a category, is usually not a difficult
question, but when ought I to guard against it? It depends
upon the
circumstances in each particular case, and it is neither necessary nor desirable
to attempt a formulation which would cover
all cases. For the purposes.of the
present case it is sufficient to say, by way of general
38
approach, that if I launch a potentially dangerous undertaking involving the
foreseeable possibility of harm to another, the circumstances
may be such that I
cannot reasonably shrug my shoulders in unconcern but have certain
responsibilities in the matter - the duty of
care."
In my opinion, it follows from the aforegoing
that in a case such as the present, in my opinion, there are three broad
questions which
must be asked, viz:
(1) Would a reasonable man have foreseen the risk of danger in consequence of
the work he employed the contractor to perform? If
so,
(2) Would a reasonable man have taken steps to guard against the danger? If
so,
39
(3) Were such steps duly taken in the case in question?
Only
where the answer to the first two questions is in the affirmative does a legal
duty arise, the failure to comply with which can
form the basis of liability.
With respect, in
Dukes v Marthinusen
(
supra
) there are some
dicta
which tend to obscure the second crucial question.
It follows from the aforegoing that the existence of a duty upon an employer
of an independent contractor to take steps to prevent
harm to members of the
public will depend in each case upon the facts. It would be relevant to consider
the nature of the danger,
the context in which the danger may arise, the degree
of expertise available to the employer and the independent contractor,
respectively,
and the means available to the employer to avert the danger. This
list is in no way
40
intended to be comprehensive. It does follow, however, that the duty of an
owner of premises such as the present may not be the same
as that of the
building contractor employed by him to do the work. That question, too, must be
answered with due regard to the facts.
I turn now to consider the facts in the instant case. The work undertaken by
the appellant was to refurbish and make additions to
the ground floor of the
building. That work included the erection of a ceiling under a canopy protruding
over a public sidewalk.
The building contract was a substantial one providing
for payment to the appellant of a contract sum of R135 962,00. The contract
reguired the appellant to take out a public indemnity insurance policy in the
sum of R1 million. Work other than that performed by
A Dudley and Sons required
the appellant to erect scaffolding in the vicinity of the sidewalk. It
appeared
41 from questions put during the cross-examination of Mr Rogerson by
the appellant's counsel that the public was protected from that
danger by
cordoning off the scaffolding and requiring pedestrians to walk around it. The
building contract required the appellant
to
"constantly keep upon the Works a competent foreman."
On the day
of the accident A Dudley and Sons had erected across the sidewalk the beam and
trestles. That obstruction was not cordoned
off and no warning signs had been
erected to warn pedestrians of its presence.
The first question to be considered is, then, whether the appellant should
reasonably have foreseen the risk of danger to pedestrians
in consequence of the
work it employed A Dudley and Sons to perform. One sees from the photographs
which
42
form part of the record that the canopy is a substantial one and
protrudes over practically the whole area of the sidewalk beneath
it. It is
obviously too high to be reached by workmen from the sidewalk. In my view it
would have been obvious to the appellant that
the workmen erecting the ceiling
under the canopy would reguire to be elevated above ground level in order to
perform the work. In
order to achieve that, it must have been foreseen tnat some
form of construction would be required and that it would form an obstruction
on
the sidewalk. An obstruction of such a nature on a busy city sidewalk would
necessarily constitute a source of serious potential
danger for pedestrians
using that sidewalk. To place it there, and no more, was an inherently dangerous
act. In my opinion, the appellant
as a building contractor should reasonably
have foreseen that danger. That it did so in relation to its own scaffolding
appears from
the questions, already mentioned, to Mr Rogerson by the appellant's
counsel. In
43
short the appellánt should have realised that the work was inherently
dangerous.
The second question is whether a reasonable person in the position of the
appellant would have taken steps to guard against the danger.
Here there is a
paucity of factual material. There is no evidence at all as to the contractual
relationship between the appellant
and A Dudley and Sons. There is no
information as to the history of the relationship between them. Mr Dudley and Mr
Rogerson were
both the respondent's witnesses. They were extremely vague. They
could remember none of the detail such as, for example, the day
on which the
obstruction was erected. One knows no more than that,as a probability, it was
that obstruction into which the respondent
walked.
In my opinion, the absence of the detail to which I have just
44 referred
is hardly the fault of the respondent. She established that the obstruction was
inherently dangerous. Unless there were
special circumstances present,
especially with regard to the relationship between the appellant and A Dudley
and Sons, I am of the
opinion that, being cognizant of the danger to members of
the public, the appellant, as a substantial building contractor, should
not
simply have left it to the contractor to take adeguaLe stepc to protect such
people from that danger. Through its foreman, constantly
required to be on site,
the appellant, as a probability, would have been in a position to prevent the
erection of the dangerous obstruction
without adequate precautions having been
taken. Whether such precautions were to be taken by the appellant or the
contractor, as
between them, is a matter depending on their contract. As far as
the duty to the public in general and the respondent in particular
is concerned
it matters not. That duty rested upon the appellant. If indeed there were
45
special facts or circumstances which in law might have relieved the appellant
of its duty to take adequate precautions, they were
clearly and peculiarly
within its own knowledge. The respondent established facts which at least
prima facie
placed such a duty upon the appellant. No evidence to the
contrary was placed before the trial Court to disturb that
prima facie
case. It follows, in my judgment, that the second questton must also be answered
affirmatively in favour of the respondent.
The third question is whether such steps were taken by the appellant. They
were not. In my view the only adequate precaution in the
circumstances would
have been to cordon off the obstruction. I do not believe that warning signs
would have been sufficient. As even
such signs were absent the breach by the
appellant of the duty resting upon it is manifest. In all the circumstances,
therefore,
the learned
46
trial Judge correctly held the appellant liable to compensate the respondent
for the damages sustained by her.
It was submitted by appellant's counsel that the particulars of plaintiff's
claim did not encompass this cause of action, ie. that
the erection of the
trestles and beam constituted a dangerous obstruction. Again, I cannot agree.
The following allegations,
inter alia
, were made on behalf of the
respondent:
"4.1 They (the appellant) failed and/or neglected to to ensure that the said
building operations were being conducted in a safe
manner.
4.2 They failed to warn, alternatively, adequately
to
warn members of the public that building operations were in progress at all
material times hereto.
47
4.3 Being aware :hat the said pavement was being used by members of the public
they owed a duty of care to ensure the safety of members
of the public and in
breach of that duty they neglected to warn the public that building work was in
progress and/or that the said
building was being refurbished and/or neglected to
ensure that said pavement was in a safe condition to be used by members of the
public.
4.6 They failed to avoid an accident when by the reguisite skill and care they
could and should have done so."
It is true that in
further particulars for trial, allegations were made to the effect that the
appellant itself erected the trestles
and the wooden beam. However, the evidence
to the effect that it was probably the sub-contractor which did so was led
without objection.
The application for absolution
48
from the instance at the close of the respondent's case was argued,
inter
alia
, on this assumption. Before evidence was led on behalf of the
appellant, therefore, the precise nature of the respondent's case was
known to
the appellant. Any ambiguity or omission in the respondent's pleadings
therefore, in no way prejudiced or misled the appellant.
Finally, on the merits, it was submitted on behalf of the appellant that
there was contributory negligence on the part of the respondent.
It was argued
that she failed to keep a proper lookout. She kept her gaze on the ground ahead
of her without looking upward and ahead
of her when she could and should have
done so. As I have already held, pedestrians walking on a city sidewalk are
entitled to assume
that, in the absence of adequate precautions or warning, the
way is clear and safe. Furthermore, according to her uncontroverted
evidence,
the surface of the sidewalk in the vicinity of the
49
obstruction was broken and uneven and for that reason she was watching the
surface of the sidewalk immediately in front of her. In
all the circumstances, I
am satisfied that the respondent's failure to look up and notice the wooden beam
cannot be ascribed to negligence
on her part. I might add that, as pointed out
by respondent's counsel, the suggestion that she was guilty of contributory
negligence
was not canvassed with her in cross-examination. For the aforegoing
reasons the appeal must be dismissed.
I proceed now to consider the cross-appeal. The central issue is whether the
respondent is suffering, as advanced on her behalf, from
organic brain damage,
or whether, as advanced on behalf of the appellant and found by Van Schalkwyk J,
she is suffering solely from
a post-traumatic psychoneurological syndrome. The
former condition is irreversible whilst the latter is likely to be wholly or
partially
curable. The
50
resolution of this issue has a very material effect upon the quantum of the
respondent's damages arising from her future loss of earning
capacity.
The respondent was born on 12 September 1934. She and her husband, Dr ds
Valence, were married in 1966. He is a medical physicist.
They have no children.
Before her marriage the respondent qualified in London in diagnostic audjometry.
She began her practice in
audiometry in Johannesburg in 1964. By 1982 it had
expanded to include sattelite clinics in Benoni, Florida and Vereeniging.
Immediately after she received the blow to her head, the respondent developed
a headache which involved the whole cranium. Her forehead
began to swell. She
was able to hold a conversation with her attorney, Mr Rosen, and her partner, Mr
Carter. During that consultation,
the swelling became so noticeable
51 that
Mr Rosen suggested that she have it photographed. She did so and the photographs
were exhibits at the trial. That Friday evening
the respondent was able to
function normally at a dinner party at her home. She did have a headache which
continued into the following
day. The first unusual symptom manifested itself on
the Monday morning. When she woke up she introduced herself to her husband. He
realised something was amiss and he made an appointment for her to see their
general practitioner, Dr John. He diagnosed severe concussion
and insisted on
bed rest for ten days. With some reluctance she accepted this advice. However,
her condition deteriorated. She began
to lose her balance and experienced
difficulty with speech. At the end of the ten-day period her condition was still
deteriorating.
She would stumble and experience bouts of dizziness. When he next
examined the respondent, Dr John referred her to a neurologist,
Dr W G Maxwell.
That was on 2 September 1982. According to Dr Maxwell the respondent
52
complained of a persistent headache and difficulty with sleep. She was tired
and listless and her concentration and memory recall
had been severly affected.
Her personality had altered dramatically. She had lost confidence and tended to
be irrational and depressed.
On examination Dr Maxwell found her to have a mild
dysphasia, ie. a difficulty with her speech. More particularly she groped for
words and occasionally misused them. He found evidence of a mild paralysis of
the right side. This was evidenced by an alteration
in the tone and reflexes on
that side. It was also indicated by a drift of the outstretched arm with the
eyes closed. Power on the
right side was minimally decreased. She also had a
subjective impairment of sensation on the right.
Dr Maxwell had the respondent admitted to the Sandton Clinic where he
undertook various examinations. A computerised axial tomography
(CAT) scan was
performed on 3 September 1982.
53
The report indicated no abnormality. On the following day Dr Maxwell
performed a lumbar puncture. This showed slightly raised pressure.
Electroencephalographic studies showed a diffuse abnormality with a random
excess of sharp wave activity. Dr Maxwell's response was
that the respondent had
sustained a subarachnoid haemorrhage, the acute signs of which had resolved but
which had left neurological
deficits. She was treated with various medications
and kept in hospital for about two weeks. Thereafter she was seen as an
outpatient.
The respondent continued to experience bad headaches. She
was unable to cope with her life either at home or in her
practice. She became forgetful and distractable. Even a
door opening would cause her to lose the trend of a conversation.
According to both the respondent and her husband she attempted
to return to work in her practice. In the result she felt
that she could not cope with the responsibility. After making
54 these
attempts on some ten or twelve occasions she gave up. During October 1983 the
respondent received a letter from Mr Carter
terminating the partnership.
According to the respondent he told her that he did not want a "brain-damaged
partner".
Some eighteen months after the accident, when her symptoms were still
persisting, Dr Maxwcll refmrred the respondent to Dr D Saffer,
head of the
neurology department at Baragwanath Hospital, who has a particular interest in
speech problems. A further electroencephalograph
(EEG) and a CAT scan were taken
and the respondent was referred to Professor M Saling, a neuropsychologist on
the staff of the Psychology
Department at the University of the Witwatersrand.
She was also seen by experts at the National Institute for Personnel Research
(NIPR). Since about that time the respondent had been seeing a psychologist , Dr
Cora Smith, on an on-going basis.
55
Professor Saffer testified. He said that when he first saw the respondent he
examined her original CAT scan. He found an abnormality
in that the left
ventricle of the brain appeared to be slightly larger than the right ventricle.
Then, in July 1984, a radiologist,
Dr Diers, took a further CAT scan. According
to his evidence this showed a small area of gliosis (scarring) just to the left
of the
lateral ventricle. According to Dr Diers this scarring must have
developed after the first scan had been performed.
Professor Saffer tested the respondent. He found her categorising to be
abnormal and this indicated a defect in her left frontal lobe.
This witness said
that the EEG, the scans, and strong clinical impression indicated something
wrong and that is why he referred the
respondent to Professor Saling. He
concluded that she had underlying organic damage
56 with a possible
psychological overlay.
Professor Saling stated in evidence that the respondent was suffering from a
number of neuropsychological disorders which are usually
associated with a
condition of brain damage. He referred in this context to her impaired power of
concentration, her tendency to
be distracted, her significant memory
disturbance, anu the tsndency for the right side of her body to be less
coordinated than her
left side. Professor Saling also referred to her
right-sided sensory supression which she said was normally associated with
damage
to the left side of the brain. She has had a personality change in that
she becomes aggressive and irritable for no apparent reason.
She feels insecure
and unsure of herself. She experiences anxiety which resulted in her becoming
house-bound. She avoids social contacts.
All those changes, said Professor
Saling, reflected damage to the left temporal lobe of the
57 brain.
Dr Smith referred to the respondent as being one of her most regular
patients. According to this witness, the respondent's condition
has become fixed
and is unlikely to improve. She will not be able to be gainfully employed.
Mrs M J Adan is a psychologist employed as a senior scientist at the NIPR.
She performed various tests upon the respondent. From the
results she concluded
that there was a mild static brain damage present strongly involving the left
hemisphere and which was consistent
with the right-sided sensory and motor
problems that she was experiencing.
Mrs Mary Hansen, an occupational therapist, examined and tested the
respondent. She also found abnormalities with the respondent's
right side. For
example she noticed a marked
58
balance difficulty and that her muscle strength on that side was
slightly weaker than on the left. Mrs Hansen expressed the opinion
that the
respondent was unable to cope with a return to work. She could not perform any
full-time occupation. Some five years after
the accident, in July 1987, Dr
Maxwell again examined and tested the respondent. His conclusion was that she
sustained a significant
head injury evidenced by nis initial clinical
examination which showed the presence of a right hemiparesis which has to a
large extent
resolved but leaving residual and significant signs. He referred to
her facial asymmetry, her dissociated movement and her abnormal
EEGs. He was
asked to comment on the normal first CAT scan and a subsequent normal magnetic
resonance (MNR) scan. The latter, it
would appear, is more sensitive than a CAT
scan. According to Dr Maxwell one can have extensive dysfunction of the brain
but have
completely normal scans. He said:
59
"For example if we took a person. with a cerebro-vascular thrombosis it
is well accepted that in 25% of patients within the first
two weeks of a
significant thrombosis when a person is completely paralysed on one side, then
they have a completely normal CT brain
scan... The magnetic resonance scan is
seen in the same light. Again this is limited in its application, it is a very
useful type
of investigation but again it is showing the more gross things such
as scarring and it is not showing a dysfunction at a fairly low
level... The
crux of the matter as far as the scans are concerned is that one is more
interested in what is happening at the cellular
functional level and here the
electro-encephalographic recording and the psychometric tests are of far greater
value in determining
cerebral function or dysfunction."
60
He also said that:
"The EEG recordings have suggested an epileptogenic dysfunction and on the basis
of the recordings together with the clinical history
one is entitled to diagnose
this patient as having post-traumatic epilepsy. The patient is at this stage
only having partial episodes,
epileptic episodes, but she is at considerable
risk to develop more overt signs of an epileptic form dysfunction such as
grand mal
convulsion. Finally the patient is considered permanently
incapable of returning to her previous level of
employment."
With regard to epilepsy, Professor
Nelson, a psychologist and executive director of the NIPR testified to the
effect that the EEG
findings on 28 July 1987 were more abnormal than
61 those
of 18 April 1986 and continued to suggest a left hemisphere dysfunction,
possibly epiieptogenic.
In my opinion, the aforegoing constitutes significant evidence that the
respondent suffered some organic brain damage in consequence
of the accident. I
shall consider now the evidence led on behalf of the appellant to counter
it.
Dr Z Wolf is a neurologist and psychiatrist. He examined the respondent in
June 1987. He also interviewed her husband. His opinion
is that the respondent
sustained no organic brain damage and is suffering from a post-traumatic
neurosis. He anticipates that with
psychotherapy and settlement of her claim her
symptoms will abate. He also expects her to recover her ability to work. I agree
with
the submission made by respondent's counsel that Dr Wolf's opinion fails to
take account of or acceptably explain the abnormal EEG
results
62
or the findings by the respondent's experts of a weakness on her right side.
Indeed, during re-examination by the appellant's counsel,
Dr Wolf was asked to
what he would attribute her weakness had he diagnosed it. He replied:
"I would have looked for an organic lesion... if there is objective evidence of
weakness you must find an organic basis for it."
Dr
Wolf found no such weakness on his examination.
Dr F D Snyckers is a neurosurgeon. He examined the respondent in about
November 1986. In his opinion the examination demonstrated
incongruities in the
clinical picture which suggest that at least part of her condition is
psychogenic. He added that:
63
"At present the clinical picture conforms most closely to a post-traumatic
syndrome, markedly aggravated by a conversion
state."
Dr Snyckers, however, agreed that the
physical findings by Mrs Hansen could indicate an organic problem, He also
stated that if the
respondent way suffering from epilepsy four years after the
accident one could expect that it would not disappear. Dr Snyckers also
expressed the opinion that if there was an actual weakness on the right side
then one is driven to the conclusion that it is attributable
to an organic
problem, ie. a lesion. Dr Snyckers, however, excluded a brain lesion,
principally because, if there, it would have
shown up on the MNR scan which he
described as being very sensitive. He also considered EEGs to be inconclusive of
brain damage.
In summary, it was the opinion of this witness
64
that the respondent -
"sustained a blunt injury to the forehead, she sustained bruising of the skin
and subcutaneous tissue, she ruptured a blood vessel
or two between the scalp
and the bone. She developed a post-traumatic syndrome and this was three days
later followed by the development
of psycholuyical
disturbances."
Dr V Nell, a clinical
neuropsychologist, examined the respondent in June and July 1987. In his report,
confirmed in evidence, Dr Nell
said:
"The pattern of deficits revealed by the testing is not consistent with any
known etiology given the background of a bright, humorous,
well-oriented and
perceptive person, who was clearly visible in
65
the conversational interludes between the test items. However, the qualitative
analysis of the deficits offered in the preceding
section is entirely consistent
with a pseudoneurological syndrome that derives partly from a sick role
enactment, partly from a conversion
reaction, and partly from a conviction that
the test results should reflect an 'organic' pattern of deficits in memory,
sequencing
and language comprehension."
In short, Dr
Nell found that the respondent to an extent,
at least, was a malingerer. When
cross-examined on that finding
he tended to withdraw the suggestion. It is
relevant here
to record that every other expert who examined the respondent
rejected any suggestion of malingering. This includes Drs
Wolf and Snyckers. This initial and incorrect diagnosis of
66
malingering, in my judgment, renders Dr Nell's views of less cogency. He did
not express an opinion on the basis that the respondent's
symptoms and test
results were all genuine.
The appellant called three non-medical witnesses. The first
was Miss Gail
Jacklin. bhe is an audiometrician who was employed
in 1982 by the clinic of the respondent and Mr Carter. She
stated that after the accident the respondent did come into
the clinic from time to time. She came in to keep in touch
but said that she was unable to work. She would make enquiries
about the work being performed in the clinic. The visits
would vary in duration from 30 minutes to two hours. She
told Miss Jacklin and a co-employee, Mrs Kruger, that she
did not feel confident to do testing in case the results were
not correct. Some months later she did perform some tests.
67
She did not remember how many. She remembered her testing the responses of a
child whose mother had a hearing problem. Miss Jacklin
said that in her
conversations with the respondent she did not notice the problems that the
respondent told her she was experiencing.
She was aware of memory problems. She
found it abnormal that the respondent was unable to do her work because she had
always been
so obviously involved with it.
From time to time the respondent and Mr Carter held cocktail parties in order
to promote the services offered by their clinic. In
particular, contact was made
in this way with medical practitioners. At such parties the respondent would
play an active public relations
role. One such party was held after the accident
at Vereeniging. At that time, said Miss Jacklin, there appeared to be tension
between
the respondent
68
and Mr Carter. However, the respondent áppeared to be confident and
able to fulfil her role. She did leave the room frequently.
On another occasion,
also at a similar party, Miss Jacklin remembered the respondent saying that she
was unable to cope and would
leave the room now and then. Whilst in the room she
appeared to be able to cope adequately. When the respondent left the practice
her share was purchased by Miss Jacklin and Mrs Kruger.
Mrs Kruger also testified. She testified to the respondent coming into the
clinic after the accident. She did not remember the respondent
having given a
clear reason for not returning to work. She was somewhat vague and had scant
recall of those visits. She could not
remember any problems which the respondent
had concerning memory or her ability to hold a normal conversation. She could
recall that
she attended some cocktail parties after the accident. She noticed
no abnormal conduct
69
on such occasions. Mrs Kruger spoke to the respondent on the day that she
testified. She noticed nothing abnormal about her conduct.
She did look unkempt,
so she testified.
The third lay witness called by the appellant was an attorney, Mr M D
McMullin. He attended a consultation with the respondent and
Mr Carter at
counsel's chambers on 31 March 1983. The consuitation lasted about an huur and a
half. The respondent participated in
the consultation and showed no signs of
abnormality. Mr McMullin stated that he had not seen the respondent from that
day until he
saw her on the day he testified. He said that he was "shocked at
what she presents today". Under cross-examination Mr McMullin said
that during
the consultation Mr Carter appeared to take the lead. Although he could not
recall it, it was possible that the respondent
was unable to answer questions
that counsel put to her. In re-examination Mr McMullin said that the only change
in the
70 respondent that he could recall was that she could not remember as
well after the accident.
Concerning the Vereeniging party Dr De Valence recalled that on the preceding
day the respondent had received Mr Carter's notice of
termination of the
partnership. She was extremely upset as her work was her life. They had no
children and, according to her husband,
the loss of her practice "was rather
like losing a baby". On the day of the party she had not accepted that she was
going to lose
her practice. She was determined to perform well at the party. It
was a very strenuous evening for her and she had to spend the following
two or
three days in bed in order to recover from the effort.
The learned Judge
a quo
made no express credibility findings
concerning the respondent or her husband. Of the expert witnesses he said:
71
"I have had the opportunity of observing the witnesses and I am certain that
each of the experts told the truth as he or she saw
it."
He went on to decide the medical issues on the
probabilities and with regard to the evidence of the three non-medical
witnesses. Concerning
the respondent's failure to return to her practice, Van
Schalkwyk J said:
"I am impressed by the argument advanced by Mr Israel that the plaintiff had no
valid reason not to have returned to work on a full-time
basis at any time after
the accident. This argument is fortified by the evidence of three witnesses, all
of whom knew the plaintiff
and all of whom assessed her conduct as normal or
near normal at different times
72
after the plaintiff had suffered her injury.
Mr McMullin, an attorney, saw the plaintiff some seven months after her
injury. At that time he was not made consciously aware of
any defect in her
behaviour. When he gave evidence before this court he was shocked by the way in
which she presented.
I am aware of the evidence which supports the delayed onset of symptoms
resulting from an organic brain injury. However, it must be
recalled that the
plaintiff was not asymptomatic on the day on which she was seen by Mr McMullin.
The symptoms, albeit of a less
severe nature, commenced almost immediately after
the accident.
How then, does one explain the hospitalisation,
73 loss of memory, loss of balance and other disabilities suffered by the
plaintiff within the first month after the injury in terms
of the 'symptom-free
post-traumatic period' referred to by Professor Saling. If there were the onset
of a progressive deterioration,
which has given rise to the plaintiff's present
condition, how is it that they were not observed ssveral months later by
Independent
witnesses?
These considerations lead me to consider that the plaintiff has not suffered an
organic brain injury and that she is now suffering
from post-traumatic
psychoneurological syndrome. With psychotherapy the plaintiff is likely to
effect a recovery and to return to
employment as an
audiologist."
I have difficulty with these findings.
In the first place
74
they seem completely to ignore the evidence of the respondent and Dr de
Valence as to the reasons why the respondent did not return
to her practice.
There was her inability to concentrate, to remember well, her distractability,
her inability to cope even in and
about her home. Mrs Hansen, the occupational
therapist, did a full work assessment and difficulties were found in all areas
of work
skills that are required. She confirmed the difficulties with
concentration, memory, and understanding of instructions. As I have
already
mentioned, Mrs Hansen was of the opinion that the respondent could not cope with
returning to work. In this context the evidence
that the respondent is not a
malingerer is highly relevant. So too, is the complete absence of a pre-morbid
disposition by the respondent
not to work. Indeed, the case is precisely to the
opposite effect. She loved her work ánd was happy in a busy and
burgeoning
practice.
75
The respondent's post-traumatic inability to cope with her work is supported
by the experts who were consulted by her at the relevant
time and, more
particularly, Dr Maxwell, Professor Saling, Professor Saffer and Dr Smith. It is
also relevant in this regard that
neither Dr Wolf nor Dr Snyckers suggested that
the respondent could have worked after the accident. They both found that she
was
suffering from a serious chronic and neurotic disability. Whilst they
consider that her condition is curable I do not understand
them to disagree as
to the symptoms exhibited by the respondent at the relevant times. Both
Professor Saling and Dr Smith referred
to the respondent's pre-morbid history of
good adjustment - both marital and career.
In all the circumstances, I am of the opinion that the learned Judge
a
quo
placed undue reliance on the somewhat superficial
76
and lay evidence of Miss Jacklin, Mrs Kruger and Mr McMullin.
They
would have observed the respondent in her most favourable
condition. They
were not looking for any signs of abnormality
and may not have noticed such
symptoms as might have presented
themselves.
The learned Judge
a quo
also appears to have misunderstood Professor
Nelson's evidence with regard to the incidence among persons with no brain
damage of
abnormal EEGs. In the course of his judgment he said:
"Under cross-examination Prof Nelson stated that 20% of abnormal EEG's would
reflect no underlying abnormality. He also said that
an abnormal EEG often
follows a head injury."
In fact Professor Nelson's evidence was to the effect that
77
high incidence of abnormal EEGs was to be found in young persons aged
about 12 to 15 years. However of people between the ages of
48 and 53 (the
respondent's age) one found the lowest incidence of abnormality in EEG results.
He added that the respondent's EEG
results would not normally be associated with
the ordinary process of ageing. Even those suffering from Alzheimer's disease
did not
normally have the kind of EEG exhibited by the respondent's results.
Given the expert testimony of the respondent's witnesses I
am of the view that the probabilities point to the unlikelihood
of the respondent returning to her career or any other meaningful
work. Apart from the symptoms to which I have already referred,
there is also an inablility to retain reading material,
forgetfulness, claustrophobia and lack of attentiveness.
Her symptoms generally appear to make her unemployable.
78
The respondent has therefore lost all of her future earning capacity. On that
hypothesis it is not in dispute that the respondent
is entitled to an award in
the amount of R593 070.00. Her counsel also claims
mora
interest on that
amount from the date of the order made by the Cour
t a quo
. That she is
entitled to such an order follows from the judgment in
General Aceidsnt
Versekaringsmaatskappy Suid Afrika Bpk v Bailey N.O
1988 (4) SA 353
(A).
In the result the following order is made:
a. The appeal is dismissed with costs.
b. The cross-appeal is upheld with costs and the order of
trial Court is
altered to read:
79
1. The defendant is ordered to pay to the plaintiff the
sum of R593 070.00
together with interest thereon
a tempore morae
from 30 November 1988 to date of payment.
2. The defendant is ordered to pay to the plaintiff the
costs of the
action which costs are to include the
gualifying fees of Professors Saffer,
Saling and Nelson,
Drs Smith, Diers and Maxwell, Mr G. Jackson, Mrs
S.
Hansen and Mrs Adan.
MILNE JA ) Concur
STEYN JA )
R J GOLDSTONE