Hing and Others v Road Accident Fund (A440/2011, A139/2012) [2014] ZAWCHC 15; [2014] 2 All SA 186 (WCC); 2014 (3) SA 350 (WCC) (13 February 2014)

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[2014] ZAWCHC 15
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Hing and Others v Road Accident Fund (A440/2011, A139/2012) [2014] ZAWCHC 15; [2014] 2 All SA 186 (WCC); 2014 (3) SA 350 (WCC) (13 February 2014)

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Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.s: A 440/2011
A 139/2012
Before: The Hon. Mr Justice Griesel
The
Hon. Mrs Justice Ndita
The
Hon. Mr Justice Binns-Ward
Date of appeal hearing:
29 January 2014
Date of judgment: 13 February 2014
In the matter between:
KI-XIA NG PAN
HING
First
Appellant
KIN
SEHINSON
Second
Appellant
STEPHANIE SEHINSON
Third
Appellant
JIVAN SHYA NG PAN
HING
Fourth
Appellant
JEANETTE
SEHINSON
Fifth
Appellant
MEN HA CHOO FUN
YOUNG
Sixth
Appellant
and
THE ROAD ACCIDENT
FUND
Respondent
JUDGMENT
BINNS-WARD J:
[1]
In February 2007, six sisters came to Cape
Town from the disparate parts of the world in which they lived for
the celebration of
their brother’s 60
th
birthday.  While here they were involved in a serious motor
vehicle collision, in which all of them sustained injuries.
One
of them, J.S from Toronto, Canada, died of her injuries six days
later in hospital.  The surviving sisters subsequently
claimed
compensation in terms of the
Road Accident Fund Act 56 of 1996
. The
late J.S’s spouse also sought compensation, as did the couple’s
only daughter.  The claim of one of the sisters
was settled.
The other claims gave rise to litigation.   The ensuing six
actions were tried together before Klopper
AJ in two stages during
June 2010 and February 2011.  It was agreed that the first
appellant, who had been driving the
vehicle in which the siblings had
been travelling, had been equally at fault with the driver of the
other vehicle in causing the
collision.  The matter therefore
went to trial only on the issue of quantum, with the Fund accepting
liability for 50 per
cent of such damages as the first appellant was
able to prove, and to the full extent of those which the other
appellants could
establish.
[2]
The actions of J.S’s surviving spouse
and daughter were dismissed, while those of the four sisters were
successful only to
a limited degree.  All six plaintiffs have
come on appeal against the judgment of the trial court.  The
appeals are with
the leave of the court a quo, granted on 26 August
2011.
Condonation
[3]
In terms of rule 49(2) of the Uniform
Rules, the appellants were required to deliver a notice of appeal
within 20 days after the
date upon which leave to appeal was granted,
or within such longer period as might upon good cause shown be
permitted.  They
failed to comply with this requirement.
They have sought condonation of their non-compliance.  The
application for condonation
was filed only in December 2013, at the
same time as the appellants’ heads of argument were delivered.
The explanation
offered for the non-compliance was that a notice of
appeal would have been a supererogation, as the judge a quo had
stated in his
judgment granting leave to appeal that he was doing so
‘on the grounds set out in their Notice of Appeal dated
1 August
2011’.  (The so-called ‘Notice of
Appeal’ thus referred to was in fact the appellants’
notice of application
for leave to appeal.)
[4]
The explanation is unacceptable.  The
application for leave to appeal had listed 65 grounds on which the
judge a quo was alleged
to have ‘erred and misdirected
himself’.  As the respondent’s counsel justifiably
observed, a number of
those grounds were so vaguely formulated as to
be of little or no assistance in meaningfully defining the bases of
the intended
appeals.
[1]
In any event it should have been apparent to the appellants that the
learned acting judge could not possibly have intended
his words to be
taken literally.  The effect of the notice of application for
leave to appeal was to suggest that he had misdirected
himself at
every turn in making any findings adverse to their claims.  In
the context of his detailed and fully reasoned judgment,
it could not
reasonably have been assumed by the appellants or their legal
representatives that by granting leave to appeal in
the terms he did,
the judge meant to be understood to be acknowledging that such wide
ranging error and misdirection on his part
might reasonably be
established on appeal.  On the contrary, the manifestly
indiscriminate formulation of the grounds on which
the application
for leave to appeal was brought brings to mind the observation of a
US Appeals Court judge that when he sees ‘an
appellant's brief
containing seven to ten points or more, a presumption arises that
there is no merit to
any
of
them’.
[2]
[3]
[5]
The appellants, however, did not redeem
their non-compliance by belatedly delivering a notice of appeal, or
applying for leave to
do so out of time.  That was regrettable,
to say the least.  Only two days before the appeals were due to
be heard did
the appellants tender, and then only on a contingent
basis, a purported notice of appeal which merely replicated all the
grounds
set out in their application for leave to appeal,
notwithstanding that it was evident by then that many of those
grounds had been
abandoned and, in fact, notice had been given that
the fourth and sixth appellants’ appeals were not being
proceeded with
at all.  The very belatedly proffered notice was
obviously entirely unacceptable.  In effect, we were thus called
upon
to hear the appeal on the grounds apparent from the heads of
argument delivered by their counsel.  That is indeed the basis

upon which appeals to the Supreme Court of Appeal are heard, there
being no provision in the rules applicable when an appeal lies
to
that court for the delivery of a notice setting out the grounds
thereof.
[4]
In
Mpondo v Road Accident Fund
[2011] ZAECGHC 24 (9 June 2011),
[5]
Dambuza J (Tshiki and Eksteen JJ concurring) held that
matters raised only in heads of argument could not be entertained
on
appeal to a full court of the High Court.  In that case,
however, a notice of appeal had been delivered and the learned

judge’s remark was made in the context of an issue having been
raised in the heads of argument that had not been adumbrated
in the
notice of appeal.  In deciding whether the appeals should be
entertained in the current rather different situation
I consider the
purpose of a notice of appeal must be kept in view.  It is to
define the ambit of the appeal for the benefit
of the appellate court
and the respondent.  The court needs to know the issues arising
out of the judgment of the court a
quo that it is called upon to
determine, and the respondent needs to be informed of what it has to
address in argument.  The
respondent, which opposed the
application for condonation, questioned whether, in the absence of a
notice of appeal, there was
in point of fact an appeal before us.
It did not allege, however, that it was not able to deal with the
appeals; indeed its
affidavit opposing the condonation application
was delivered only some weeks after it had delivered its heads of
argument in the
appeals.  In the absence of any complaint from
the respondent that it is prejudiced in being able to argue the
appeals, I
am inclined to hold that the issues that the court is
called on to deal with are clear enough from the appellants’
heads
of argument.  I am thus willing, albeit with some
diffidence, to entertain the appeals, treating the heads of argument
in
lieu of a notice of appeal, as counsel on both sides acknowledged
would be appropriate were we inclined to condone the absence of
a
proper notice of appeal.
[6]
Condonation was also sought for the late
filing of the record on appeal.  In this connection the
explanations given were also
not entirely satisfactory –
certainly not with regard to the length of the delay that was
involved.  However, having
regard to the overall conspectus of
relevant considerations, I am satisfied that it would be appropriate
in the interests of justice
to grant the application, which includes
condoning the late filing of the appellants’ heads of argument.
[7]
Obviously, the costs of the application for
condonation must be borne by the appellants.
[8]
Turning then to address the appeals on
their merits.
The first appellant (Ki-Xia Ng Pan Hing, known as Cecile)
[9]
Despite it having been alleged in her
amended particulars of claim that the first appellant had sustained
‘a ruptured right
kidney’ and ‘a fracture of the
left pubic ramus’, the evidence established that the only
physical injury actually
suffered by her was some bruising to her
chest (‘a chest wall contusion injury’), occasioned, no
doubt, by the restraining
forces exerted by her seatbelt during the
collision.
[10]
The heads of damages claimed by the first
appellant at trial were comprised as follows: compensation for pain,
suffering, disability
and the loss of amenities of life (R200 000);
loss of rental income (Canadian $27 300 - quantified in the
particulars
of claim as R150 000); and loss of income due to
‘delayed career or promotional prospects’ (Canadian
$21 500).
The claims for loss of income were predicated on
the argument that the appellant had sustained a psychiatric injury,
which adversely
affected her opportunity for promotion at work and
rendered her so demotivated that she could not arrange for the rental
of certain
apartments that she held as investments.  I say that
the claim was predicated on the
argument
that the first appellant had sustained a psychiatric injury because
no
allegation
to that effect is to be found in the particulars of claim.  (It
bears mention in that respect that on more than one occasion
during
the trial the respondent’s counsel complained about the
discrepancies between the pleadings and the evidence being
tendered.
The trial judge also deprecated the shoddy drafting of the
appellants’ pleadings more than once in the course
of his
judgment.)  The only basis on which the claims were cognisable
for the purposes of judgment at first instance and thus
also on
appeal is because both parties proceeded at trial as if the claims
had been properly pleaded; cf.
Shill v
Milner
1937 AD 101, at 105.
[6]
[11]
The trial court held that the evidence did
not establish that the first appellant had sustained an identifiable
psychiatric injury
and dismissed her loss of income related claims.
It awarded her R20 000 in general damages, being in respect of
the
effects of her aforementioned very limited physical injury.
(Having regard to the agreed 50/50 apportionment, this in effect
valued
her general damages at R40 000.)
[12]
According to the heads of argument, the
first appellant appeals on the grounds that the general damages
awarded to her were too
low and that the trial court erred in
dismissing her claim for loss of rental income.  The first
appellant did not pursue
on appeal her claim for loss of income
predicated on adversely affected career prospects.
[13]
It is clear that the question whether the
first appellant succeeded in establishing at the trial that she had
sustained a psychiatric
injury is central to the determination of her
appeal.  As alleged psychiatric injury was also the foundation
of some of the
claims of the other appellants it is convenient at
this stage to rehearse the applicable principles generally.
[14]
The recovery of compensation in delictual
damages for ‘nervous shock’ or psychiatric injury has
proven a contentious
subject internationally.  Because of the
crucial role of policy considerations, especially due to concerns
about potentially
limitless liability, the development of the law in
this area has been treated in some judgments as analogous, to the
development
of the law of delict in respect of the recovery of
damages for pure economic loss.  See in this regard, for
example, the remarks
of Lord Steyn in
White
and Others v. Chief Constable of South Yorkshire and Others
[1999] 1 All ER 1
(HL), at 31-2:
Courts accept that a recognizable psychiatric illness
results from an impact on the central nervous system. In this sense
therefore
there is no qualitative difference between physical harm
and psychiatric harm. And psychiatric harm may be far more
debilitating
than physical harm.
It would, however, be an altogether
different proposition to say that no distinction is made or ought to
be made between principles
governing the recovery of damages in tort
for physical injury and psychiatric harm. The contours of tort law
are profoundly affected
by distinctions between different kinds of
damage or harm: see
Caparo
Industries Plc. v. Dickman
[1990] UKHL 2
;
[1990]
2 AC 605
, at
618E, per Lord Bridge of Harwich. The analogy of the relatively
liberal approach to recovery of compensation for physical damage
and
the more restrictive approach to the recovery for economic loss
springs to mind. Policy considerations encapsulated by Justice

Cardozo's spectre of liability for economic loss "in an
indeterminate amount for an indeterminate time to an indeterminate

class" played a role in the emergence of a judicial scepticism
since
Murphy v.
Brentwood District Council
[1991] UKHL 2
;
[1991]
AC 398
about
an overarching principle in respect of the recovery of economic loss:
see Steele,
Scepticism
and the Law of Negligence
,
[1993] C.L.J. 437.
The differences between the two kinds of damage
have led to the adoption of incremental methods in respect of the
boundaries of
liability for economic loss.
Similarly, in regard to the
distinction between physical injury and psychiatric harm it is clear
that there are policy considerations
are at work. That can be
illustrated by reference to the Criminal Injuries Compensation
Scheme.
Section
109
(2) of
the
Criminal
Justice Act 1988
contains
this restrictive rule:
"Harm to a person's mental condition is only a
criminal    injury if it is attributable -   (a) to

his having been put in fear of immediate physical injury to himself
or another; or   (b) to his being present when
another
sustained a criminal injury other than harm to his mental condition."
The reason for the restriction is that Parliament was
fearful that a more liberal rule would impose an intolerable burden
on the
public purse. Parliament has also decided that the only
persons who can claim bereavement damages are parents and spouses:
section
1(A)(7) of the Fatal Accidents Act 1976. The spectre of a
wide a class of claimants in respect of bereavement led to an
arbitrary
but not necessarily irrational rule.
[15]
In English jurisprudence there has been a
notable tendency recently to rein in the range of circumstances in
which damages for psychiatric
injury may be recovered, and to leave
it to Parliament to determine by statutory provision on whatever
relaxations to this restrictive
approach might be thought
appropriate.  This has resulted in the formulation by the courts
there, in particular the House
of Lords, of confessedly arbitrary
special criteria such as that mere bystanders to a traumatic event
are not entitled to recover
compensation for psychiatric injury even
if its occurrence was eminently foreseeable; this much is illustrated
in the historical
overview provided in Lord Steyn’s ‘thus
far and no further’ opinion in
White
and Others v. Chief Constable of South Yorkshire and Others
[1999] 1 All ER 1
(HL).
[16]
The decision in
Alcock v Chief
Constable of the South Yorkshire Police
[1991] UKHL 5
;
[1991] 4 All ER 907
(HL)
established that
a person who suffers
reasonably foreseeable psychiatric illness as a result of another
person’s death or injury cannot recover
damages unless he can
satisfy three requirements, viz: (i) that he had a close tie of love
and affection with the person killed,
injured or imperilled; (ii)
that he was close to the incident in time and space; (iii) that he
directly perceived the incident
rather than, for example, hearing
about it from a third person.
[7]
In
Page v Smith
[1995] UKHL 7
;
[1995] 2 All ER 736
(HL) a distinction
was drawn between primary and secondary victims in the sense that a
person within the range of foreseeable physical
injury as a
consequence of the tortious act (‘primary victims’) could
recover compensation for psychiatric injury,
whereas persons outside
that range (‘secondary victims’) could recover only if
the requirements established in
Alcock
were satisfied.
The peculiar grounds of distinction drawn by the English courts were
clearly directed at attempting to define
special limits to the
ability to claim compensation for psychiatric injury.  The
result, as Lord Steyn observed in
White
supra, at 38, is that
‘the [English] law on the recovery of compensation for pure
psychiatric harm is a patchwork quilt of
distinctions which are
difficult to justify’.
[17]
The Australian High Court, on the other
hand, has eschewed these formulations and adopted an approach which
would appear to draw
no distinction between the compensability of
negligently caused psychiatric injury and physical injury,
[8]
with the controlling criterion to avoid potentially limitless
liability by the tortfeasor being the determination of whether on
the
peculiar facts of a given case there was a duty of care on the
tortfeasor to avoid causing the harm suffered; see
Tame
v New South Wales
[2002] HCA 35
,
especially at para 183.
[9]
Considerations of reasonable foreseeability, causation and
remoteness of damage
are weighed in the
determination of the existence of a duty of care in a given case.
This suggests an exercise closely corresponding
to that in which our
courts engage in making determinations under the rubrics of
wrongfulness and ‘legal causation’.
The trend of
relevant legal development in Australia has been similar to that in
our own law.
[18]
The number of reported cases in point in
South African jurisprudence is very small. The effect of the judgment
in
Bester v Commercial Union
Versekeringsmaatskappy van S.A. Bpk
1973
(1) SA 769
(A) was to treat psychiatric injury (provided it conformed
to an identifiable psychiatric condition –
Afr.
‘herkenbare
psigiese letsel’
[10]
)
as legally indistinguishable from any other form of bodily injury,
its organic basis lying in the effect of the wrongdoer’s

conduct on the claimant’s nervous or neurological system.  That
approach was reaffirmed in
Barnard v
Santam Bpk
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA);
[1998] 4 All SA 403.
In
Bester
,
the Appellate Division pointed out that certain earlier judgments
[11]
upon which the respondent insurance company had predicated its
argument that our law did not recognise a claim for ‘nervous

shock’ where the effect was not associated with, or accompanied
by, a physical injury in the ordinary sense, had in point
of fact
been adversely decided against the claimants on the grounds of
remoteness or lack of foreseeability, not the absence of
a remedy in
delict.  The Appeal Court held that there was no reason in our
law to deny a claim for delictual damages sustained
as a result of
psychiatric injury, provided that such injury would have been
foreseeable by a reasonable person in the position
of the wrongdoer.
The respondent’s argument in
Bester
that psychiatric injury had to be
accompanied by physical injury to be compensable was rejected as
illogical and unfounded in legal
principle.
[19]
The
notion that a psychiatric injury is compensable irrespective of
whether the wrongful act physically wounded the victim logically

entails accepting that the injury may be sustained by someone who is
not present at the scene where the wrongful act is committed,
for a
direct physical connection is not a requirement.  That much was
confirmed in
Barnard
.
The judgment in
Barnard
held that a negligent driver should foresee that in consequence of
the serious physical injury or death of any person in a resultant

collision third parties closely connected by love or affection to the
deceased or injured person might suffer psychiatric injury
upon being
informed of the event.
The plaintiff
in
Barnard
was
a mother who, it was accepted for the purpose of the judgment, had
sustained psychiatric injury upon being informed telephonically,
a
few hours after the event, of the death of her young son in a motor
vehicle collision.
[20]
Barnard
also
confirmed, however, that liability does not follow merely because the
damage is foreseeable.  Policy considerations will
determine
whether in a particular case a sufficient causative connection
(so-called ‘legal causation’) between the
wrong and the
consequent psychiatric injury should be recognised to justify fixing
the wrongdoer with liability.  In that
regard Van Heerden DCJ
endorsed the concern expressed by Navsa J in
Clinton-Parker
v Administrateur, Transvaal; Dawkins v Administrator, Transvaal
1996
(2) SA 37
(W) at 63B-D that
‘
Accident cases present
particular policy problems. The floodgates will open if claims for
nervous shock are not contained within
manageable limits. An infinite
number of people could claim for nervous shock upon viewing an
accident and its consequences. So
too with relatives or friends to
whom an accident and its consequences are communicated. The number of
deaths and severe physical
injuries that occur in modern life due to
motor vehicle and other accidents is great. The Courts may well, in
adopting too liberal
an approach to these situations and allowing
bystanders and relatives to the umpteenth degree to claim damages,
cripple economic
activity
’
,
but
considered that the fear of limitless liability was exaggerated,
pointing to the minimal number of claims for psychiatric injury

reported since
Bester
.
[12]
It was, however, emphasised in
Barnard
that the question whether particular
conduct should be recognised as legally causative of a consequence
falls to be decided on a
case by case basis.  In deciding that
the allegations in the stated case in
Barnard
made out a cognisable claim, the
Supreme Court of Appeal stressed the characteristics of the closeness
of the mother-young son relationship
and the comparatively short
period of just a few hours that had intervened between the child’s
death and the mother being
informed of it.  These considerations
- which are undeniably reflective of some of the requirements in
Alcock
supra
– but, importantly, were not stated as essential criteria for
the compensability of psychiatric injury in our law -
bore on ‘legal
causation’, a requirement for the attachment of delictual
liability of which I shall treat later in
this judgment.
Barnard
was distinguishable on its facts in material respects from the
matters currently before us.
[21]
It is plain from the judgments in
Bester
and
Barnard
that whether a psychiatric injury has been sustained by a claimant is
a question that falls to be answered through the expert evidence
of
psychiatrists.  That seems also to be the position in
England
[13]
and Australia.
[14]
The appellants did not adduce
viva voce
evidence by a psychiatrist at the trial, but the expert summary
reports of Dr Chris George, who is a psychiatrist, were put
in
on the basis that, assuming the underpinning factual assumptions were
established in evidence, the expert opinion content thereof
was
admitted by the respondent.
[22]
According to his report, Dr George examined
the first appellant at Cape Town on 21 July 2009 for the purpose
of ‘psychiatric
evaluation and report’.  With regard
to ‘Mental State Examination’, the report records that
‘[the
first appellant]
was
cooperative and friendly during the consultation, she was able to
give a clear and lucid account of herself and the accident.

There was no evidence of cognitive or memory impairment, or depressed
mood.  However, when she spoke about the accident and
her late
sister, Jackie, she became sad and tearful and there was a
recrudescence of unresolved grief.
’
Under the sub-heading ‘Conclusion’, the report stated
‘[the first appellant]
has
symptoms of chronic posttraumatic stress disorder which manifest when
she is driving, she is more cautious and somewhat anxious
in
situations on the road which evoke memories of her accident, but her
ability to drive or use her motor vehicle is not impaired
in any
way.  Cecile has symptoms of unresolved grief and loss for her
late sister, Jackie.
’
Dr George recommended a course of behavioural psychotherapy to
be prescribed by a clinical psychologist.
[23
]
I do not think that the trial judge can be
faulted for deciding that the content of Dr George’s
report did not establish
that the first appellant had suffered an
identified psychiatric injury.  That the judge was justified in
holding that manifesting
some symptoms of posttraumatic stress
syndrome did not equate to a diagnosis that the appellant was
suffering from the disorder
itself was confirmed in the evidence of
Ms Elspeth Burke, a clinical psychologist who testified at the
trial in support of
the appellants’ claims.  Quite apart
from anything else, nothing in Dr George’s report would go
to explain
why the appellant could not arrange the rental of her
apartments.  The symptoms of posttraumatic stress identified in
the
reports of both Dr George and Ms Burke manifested only
in anxiety about driving according to his report.
[24]
Grief and sorrow over the death of anyone
held in deep affection is a natural phenomenon.  The closer the
relationship the
greater the hurt that falls to be resolved in the
grieving process and the longer and more disabling the effect of the
process
is going to be.  That much is a matter of common human
experience, which expert evidence is not required to establish.

Damages are not recoverable in delict for normal grief and sorrow
following a bereavement; see
Barnard
supra, at 217B.
The position is
the same in England and Australia.
[25]
In
White
supra, at 33, Lord Steyn referred to two
groups of persons with bereavement related ‘mental suffering’:
First, there are those who suffered from extreme grief.
This category may include cases where the condition of the sufferer
is debilitating.
Secondly, there are those whose suffering amounts to
a recognisable psychiatric illness. Diagnosing a case as falling
within the
first or second category is often difficult. The symptoms
can be substantially similar and equally severe. The difference is a
matter of aetiology: see the explanation in Munkman
Damages for
Personal Injuries and Death
(10th edn, 1996) p 118, note 6.
Yet the law denies redress in the former case: see
Hinz v Berry
[1970] 1 All ER 1074
at 1075,
[1970] 2 QB 40
at 42 but compare the
observations of Thorpe LJ in
Vernon v Bosley
(No 1)
[1996] EWCA Civ 1310
;
[1997] 1 All ER 577
at 610, that grief constituting pathological
grief disorder is a recognisable psychiatric illness and is
recoverable. Only recognisable
psychiatric harm ranks for
consideration. Where the line is to be drawn is a matter for expert
psychiatric evidence. This distinction
serves to demonstrate how the
law cannot compensate for all emotional suffering even if it is acute
and truly debilitating.
Lord Steyn also remarked (at 32-3) on the ‘
the complexity of
drawing the line between acute grief and psychiatric harm
’,
particularly in the context of the reality that ‘
the
classification of emotional injury is often controversial
’.
[26]
Windeyer J expressed the position thus
in the
Australian High Court in
Mount Isa Mines Ltd v Pusey
[1970] HCA 60
;
(1970)
125 CLR 383
, at 394:
Sorrow
does not sound in damages. A plaintiff in an action of negligence
cannot recover damages for a ‘shock’, however
grievous,
which was no more than an immediate emotional response to a
distressing experience sudden, severe and saddening. It is,
however,
today a known medical fact that severe emotional distress can be the
starting point of a lasting disorder of mind or body,
some form of
psychoneurosis or a psychosomatic illness. For that, if it be the
result of a tortious act, damages may be had.
[27]
Acknowledging that there is a distinction between deep and
disabling grief and psychiatric injury highlights the importance of
cogent
expert evidence being available to enable the courts to draw
the distinction rationally.  It was with the importance of the

role of expert psychiatric opinion in mind that Gummow and Kirby JJ
observed in
Tame
supra, at para 193, that concerns about
limitless liability might be addressed ‘
if full force is
given to the distinction between emotional distress and a
recognisable psychiatric illness
’.
[28]
The reports of both Dr George and
Ms Burke identified that the first appellant’s feelings of
grief and loss had
not been resolved.  Those reports were
prepared some two and a half years after the death of the first
appellant’s sister.
Neither of the reports identified the
first appellant’s symptoms of unresolved grief as constituting
an identified psychiatric
injury or disorder.  In her oral
evidence, however, Ms Burke sought to aver that the first
appellant’s symptoms
of unresolved grief referred to in both
her and Dr George’s reports constituted what she then, for
the first time, referred
to as ‘complicated bereavement’,
a disorder apparently identified in the Diagnostic and Statistical
Manual of Mental
Disorders (‘DSM IV’).   She
went on to say that the ‘
gold
standard for treating a depressive disorder or an unresolved grief is
psychotherapy, with an adjunct of – with antidepressants
or
medication
’.  Notably,
however, there was no reference to a need for the first appellant to
be treated with an adjunct of medication
in either Ms Burke’s
medico-legal report, or that of Dr George.
[29]
Under cross-examination, Ms Burke
testified, with reference to the method of diagnosis in terms of the
DSM IV, that ‘(w)
hen you diagnose
somebody on
[?in]
psychiatric
terms, you diagnose them on five axes and the V- Code, which would in
this case be complicated bereavement, would be
on axis 1, which would
then entitle it to a - being a focus of clinical attention
’.
The opacity of that evidence was only mildly ameliorated by the
context in which it was given, which appears on the
record as
follows:
And for a clinician or physician or therapist to make a
diagnosis like post-traumatic stress disorder one would have to
satisfy
certain criteria? – Right.
Of which there are about six? – At least.
And the significance of that is that if you are
diagnosed with a condition like post-traumatic stress disorder, then
you have a
psychological illness? – Yes. You have a disorder.
As opposed to the DSM IV’s treatment of grief and
bereavement, which is different? – Yes, They’re different
diagnoses.
But, more so, that they are clumped, grief and
bereavement under a V- Code.  Isn’t that correct? –
Quite right.
Please explain to the Court what a V- Code is? – A
V- Code is a diagnosis that you give, which is the focus of clinical
attention.
The physician’s focus, or the clinician’s
focus of clinical attention.
But which does not necessarily equate to a mental
illness.  Isn’t that correct? – Does not
necessarily, but it
is  - it is not necessary to a mental
illness; it’s something that is monitored….(intervention)
A focus of clinical attention? – A focus of –
and it is diagnosed on the axes.
Unfortunately,
the respondent’s counsel’s endeavour to clarify the
issues by further questioning was interrupted by
an objection from
the first appellant’s counsel, who asserted that the
questioning was inconsistent with the respondent’s
admission of
the content of the reports of Ms Burke and Dr George.
In consequence of the ensuing prolonged and
inconclusive debate,
during which the trial judge expressed himself to be unsure of the
relevance of the line of enquiry, the issue
was left up in the air.
The result is that it is not clear on the record whether the
condition of ‘complicated bereavement’
constitutes an
identified psychological injury, or merely a criterion by which the
existence of an identified disorder, such as
a major depressive
disorder, can be determined.  I do not think that a reference to
the condition in Ms Burke’s
evidence in chief as
‘pathological’ or ‘pathological grief’
amounted, in the absence of any reasoning of
the implication of any
of the terms - especially as their employment had not been adumbrated
in her rule 36(9)(b) summary, to enough
in the circumstances to
redress the deficiency.
The
dicta
of the Australian
High Court in
Tame
supra, at para 194, resonate with our
own jurisprudence in
Bester
and
Barnard
in this
connection:
Properly understood, the requirement to establish a
recognisable psychiatric illness reduces the scope for indeterminate
liability
or increased litigation. It restricts recovery to those
disorders which are capable of objective determination. To permit
recovery
for recognisable psychiatric illnesses, but not for other
forms of emotional disturbance, is to posit a distinction grounded in

principle rather than pragmatism, and one that is illuminated by
professional medical opinion rather than fixed purely by
idiosyncratic
judicial perception. Doubts as to adequacy of proof
(which are particularly acute in jurisdictions where civil juries are
retained)
are to be answered not by the denial of a remedy in all
cases of mental harm because some claims may be false, but by the
insistence
of appellate courts upon the observance at trial of
principles and rules which control adjudication of disputed issues.
This
approach entails that in claims in which the occurrence of a
psychiatric injury is in dispute the psychiatric evidence adduced
to
support the proposition must be clear and cogently reasoned, and it
should be preceded by summaries that properly fulfil the
requirements
of Uniform Rule 36(9)(b).  For the reasons given, the expert
evidence tendered in the appellant’s case
did not measure up to
the indicated principles and rules.
[30]
I thus conclude that no basis has been made
out to upset the trial court’s finding that it had not been
proved that the first
appellant had sustained a psychiatric injury.
There was in any event a body of anecdotal evidence to which the
court could
properly have had regard to find that even if the first
appellant had sustained a psychiatric injury, its effects were not
such
as to prevent her from renting out her apartments.  The
appellant had resumed her work and leisure activities.  There

was no suggestion that she was not coping at work.  She had in
fact engaged an agent to let the apartments, but, for reasons
that
were not properly explained, found the arrangement unsatisfactory.
Moreover, Ms Burke opined that the effects of
unresolved grief
or complicated bereavement manifested ‘in waves’ between
periods of normalcy.  If that were so,
it remained unexplained
why the first appellant could not have attended to the letting of the
apartments during the periods of
normalcy.
[31]
In view of the findings in the preceding
paragraph it is not necessary, in regard to the first appellant’s
claim for lost
rental income, to consider and determine whether the
claim was sustainable having regard to considerations such as
foreseeability
and remoteness.
[32]
The first appellant’s physical
injuries were superficial.  It is thus not surprising that we
were not referred to any
reported cases concerning quantification of
damages that were closely in point.  The quantification of an
award of general
damages entails an exercise of judicial discretion
in the strict or narrow sense.  An appellate court will not
interfere unless
an appellant is able to demonstrate a vitiating
misdirection in the exercise of that discretion by the trial
court.
[15]
In my judgment the first appellant has not shown any relevant
misdirection by the trial court.  If anything, the award
erred
on the side of generosity, but, in the absence of a cross-appeal, no
more need be said.
[33]
The appeal by the first appellant will
therefore be dismissed.
The second appellant (Kin Sehinson)
[34]
The second appellant, who was born in
[…..], is the surviving spouse of the late J.S.  At the
time of the collision
he was at home in Canada.  On receiving
the news that his wife had been injured and was unconscious in
hospital, he and his
daughter, Stephanie (the third appellant), flew
to Cape Town and spent a few days at the bedside before Mrs J.S
passed away.
The second appellant was employed at the time in a
computer systems related position as ‘assistant administrator’
by
the well-known international company, Nortel.  As is also
well-known, Nortel ran into financial difficulties which resulted
in
the company filing for bankruptcy protection in January 2009.
Subsequent thereto, in May 2009, the second appellant was

retrenched.  He did not receive any retrenchment or pension
payment at the time.  Although the trial judge raised in
passing
with one of the industrial psychologists who gave evidence the
inherent probability that the appellant must nevertheless
have
enjoyed a claim against a pension fund (as a matter of law, he
probably also enjoyed a claim for retrenchment pay against
the
company under administration), the issue was not explored further.
The second appellant had failed - despite evidence
tendered in
connection with one of the other appellant’s claims that
working age limits and ageism were not issues in Canada
- to find
alternative employment.  In terms of his amended particulars of
claim, the second appellant claimed compensation
in the sum of
R992 019,89, made up as to R290 019,89 in respect of
medical and funeral expenses for his late wife and
the balance, in
the South African currency equivalent of Canadian $140 000, in
respect of loss of support.
[35]
The second appellant did not testify at the
trial and the only
viva voce
evidence adduced on the merits of his claim was that of industrial
psychologist, Mr Crous.
[36]
The trial judge did not deal with the
medical and funeral expenses claim in the judgment.  He
dismissed the claim for loss
of support.  The claim was
dismissed because the judge found that the appellant had not been
financially dependent on his
wife at the time of her death and that
any loss occasioned by his subsequent retrenchment more than two
years afterwards was too
remote.  The appeal is against the
dismissal of the loss of support claim.
[37]
There was no evidence that the appellant
had been dependent upon his wife for support at the time of her
death.  Indeed, the
evidence was that the appellant’s
annual income from employment exceeded that of his wife by about
Canadian $39 000,
being C$99 000
vis
à vis
C$60 000.  The
argument advanced on appeal that a situation of mutual financial
support might be inferred by applying
the approach often used in
child maintenance determinations of allocating the total income of
the parents as to two parts per parent
and one part per child finds
no support in principle.  The formulaic approach referred to by
counsel is applied to give a
rough indication of how an acknowledged
maintenance obligation should be quantified.  It has nothing to
do with the determination
of the existence of a duty of support.
Whether there was a need by one person for financial support and a
concomitant duty
on another to provide it in a given case depends on
the facts, notably whether there existed a relationship between the
claimant
and the deceased which would give rise in law to a duty of
support and whether, in the context of any such duty, there was a
need
at the relevant time for support to be provided (cf.
Neethling-Potgieter-Visser
Law of Delict
6ed at 279 s.v. ‘
Requirements
for a claim of loss of support
’).
As noted, there was no evidence that the appellant was reliant on the
financial support of his late wife at the
date of her death, or that
it was reasonably anticipated that he would become so.
[38]
It was argued on behalf of the second
appellant in the heads of argument, however, that ‘the
determination of damages arises
and/or is calculable up to and
including when that claim is prosecuted’ and that ‘the
deceased owed the second appellant
a legal duty of support, and that
her contribution to the joint household would have become discernable
and calculable once the
second appellant had become retrenched’.
The argument appeared to suggest that if there were a
contingent duty of support
in existence at the date of death, a claim
might competently be advanced.  In their supplementary heads of
argument, filed
the day before the appeal was heard, the appellants’
counsel invoked
General Accident
Insurance Co SA Ltd v Summers; Southern Versekeringsassosiasie Bpk v
Carstens NO; General Accident Insurance Co
SA Ltd v Nhlumayo
1987 (3) SA 577
(A), at 612B-C and 614G-615C and
Evins
v Shield Insurance Co Ltd
1980 (2) SA
814
(A) at 839 B-C in support of this argument to contend that the
court might have regard to events between the date of the delict
and
the trial to fix liability.   That argument misconstrued
the effect of the passages in the judgments relied upon.
Those
judgments did not go to considerations affecting the determination of
liability, but held in relevant part that it was appropriate
in
determining the quantum of compensation for loss already incurred to
have regard to events that had occurred between the date
of the
delict and the date of the trial.
[39]
The respondent argued in its heads of
argument simply that the appellant’s retrenchment was
irrelevant in the context of there
having been no provision of, or
duty to support by the deceased at the time of her death.  It
is, however, established that
a claim in damages may lie in delict
for prospective loss of support.  The question arose in
Jacobs
v Cape Town Municipality
1935 CPD 474.
In dealing with a submission that it was not enough for a plaintiff
to establish (i) a relationship with the deceased
which would
give rise in law to a duty of support and (ii) a need to receive
such support, but that it also had to be proved
(iii) that at
the time of death the deceased was actually providing such support,
Sutton J observed:
Mr.
Thompson
argued that it is not enough to
prove these two facts, that it must also be proved that plaintiff was
actually in receipt of maintenance
at the time of the death of his
son. He says that the action under the
Lex Aquilia
is
dependent on
damnum
, that is patrimonial loss which must
actually exist at the time of the death of the deceased. Patrimonial
loss, however, includes
prospective gains, see
Union Government v
Warnecke
[1911 AD 657]
and
Young v Hutton
1918 WLD 90
, and
the plaintiff is entitled to recover for loss he has suffered owing
to the death of his son. He has suffered patrimonial loss
in being
deprived of the support which would have accrued to him had his son
continued to live. The plaintiff had a reasonable
expectation of
receiving benefit from the continuance of his son's life. In my
opinion plaintiff is entitled to recover from defendant
the
prospective loss he has suffered owing to the death of his son,
provided such loss is not too remote and conjectural. See
Bertram
v Central South African Railways
1905 TH 234
, and
Taff Vale
Railway Co. v Jenkins
1913 AC 1.
[40]
Bertram v Central South African Railways
was a case in which a father claimed monetary
compensation for alleged prospective loss consequent upon the
deprivation of services
that he alleged he might expect his son (aged
nine when he was killed in a railway accident) to have provided in
the future.
Bristowe J appears to have implicitly
acknowledged that there was no difficulty with the claim in
principle, but rejected
it on the basis that it was too conjectural,
saying (at p. 237):
It is
suggested that there is a prospective loss, because under conceivable
circumstances the boy might have been called upon to
support his
father. This seems to me to be far too conjectural to be made a
ground of damages. The plaintiff is, comparatively
speaking, a young
man, and there is nothing to suggest that in the ordinary course of
events he would ever be thrown upon his son
for support. It might of
course so happen; but if I were asked my opinion of the probabilities
of the case I should say that the
probabilities were the other way.
In my opinion therefore this head of damages also fails.
[41]
As the cases just referred to illustrate,
the crucial question in a case like the second appellant’s is
really one of causation,
more particularly ‘legal causation’.
Legal causation as a requirement serves as a moderating tool to
regulate
a defendant’s liability so as to keep it in within
bounds which legal policy would consider reasonable.  Corbett CJ

explained the nature and role of legal causation in
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A);
[1990] 1 All SA 498
at 700E-701G (SALR) as follows:
As has previously been pointed out by
this Court, in the law of delict causation involves two distinct
enquiries. The first is a
factual one and relates to the question as
to whether the defendant’s wrongful act was a cause of the
plaintiff’s loss.
This has been referred to as “factual
causation”. The enquiry as to factual causation is generally
conducted by applying
the so-called “but-for” test, which
is designed to determine whether a postulated cause can be identified
as a
causa sine qua non
of the loss in question. In order to
apply this test one must make a hypothetical enquiry as to what
probably would have happened
but for the wrongful conduct of the
defendant. This enquiry may involve the mental elimination of the
wrongful conduct and the
substitution of a hypothetical course of
lawful conduct and the posing of the question as to whether upon such
an hypothesis plaintiff’s
loss would have ensued or not. If it
would in any event have ensued, then the wrongful conduct was not a
cause of the plaintiff’s
loss;
aliter
, if it would not
so have ensued. If the wrongful act is shown in this way not to be a
causa sine qua non
of the loss suffered, then no legal
liability can arise. On the other hand, demonstration that the
wrongful act was a
causa sine qua non
of the loss does not
necessarily result in legal liability. The second enquiry then
arises, viz whether the wrongful act is linked
sufficiently closely
or directly to the loss for legal liability to ensue or whether, as
it is said, the loss is too remote. This
is basically a juridical
problem in the solution of which considerations of policy may play a
part. This is sometimes called “legal
causation”. (See
generally
Minister of Police v Skosana
1977 (1) SA 31
(A), at 34 E – 35 A, 43 E – 44 B;
Standard Bank of
South Africa Ltd v Coetsee
1981 (1) SA 1131 (A),
at 1138 H - 1139C;
S v Daniëls en ’n Ander
1983 (3) SA 275 (A), at 331 B – 332 A;
Siman
& Co
(
Pty
)
Ltd v Barclays National Bank Ltd
1984
(2) SA 888
(A) at 914 F – 915 H;
Mokgethi en Andere v Die
Staat
, a recent and hitherto unreported judgment of this Court,
pp 18 - 24.) Fleming,
The Law of Torts
, 7th ed at 173 sums up
this second enquiry as follows:
“
The
second problem involves the question whether, or to what extent, the
defendant should have to answer for the consequences which
his
conduct has actually helped to produce. As a matter of practical
politics, some limitation must be placed upon legal responsibility,

because the consequences of an act theoretically stretch into
infinity. There must be a reasonable connection between the harm

threatened and the harm done. This inquiry, unlike the first,
presents a much larger area of choice in which legal policy and
accepted value judgments must be the final arbiter of what balance to
strike between the claim to full reparation for the loss suffered
by
an innocent victim of another’s culpable conduct and the
excessive burden that would be imposed on human activity if a

wrongdoer were held to answer for all the consequences of his
default.’
In Mokgethi’s
case,
supra
,
Van Heerden JA referred to the various criteria stated in judicial
decisions and legal literature for the determination of legal

causation, such as the absence of a
novus
actus interveniens
,
proximate cause, direct cause, foreseeability and sufficient
causation (“adekwate veroorsaking”). He concluded,
however,
as follows:
“
Wat
die onderskeie kriteria betref, kom dit my ook nie voor dat hulle
veel meer eksak is as ’n maatstaf (die soepele maatstaf)

waarvolgens aan die hand van beleidsoorwegings beoordeel word of ’n
genoegsame noue verband tussen handeling en gevolg bestaan
nie.
Daarmee gee ek nie te kenne nie dat een of selfs meer van die
kriteria nie by die toepassing van die soepele maatstaf op ’n

bepaalde soort feitekompleks subsidiêr nuttig aangewend kan
word nie; maar slegs dat geen van die kriteria by alle soorte

feitekomplekse, en vir die doeleindes van die koppeling van enige
vorm van regsaanspreeklikheid, as ’n meer konkrete
afgrensingsmaatstaf
gebruik kan word nie.”
[16]
It must further be borne in mind
that the delictual wrong of negligent misstatement is relatively
novel in our law and that in the
case which in effect brought it into
the world,
Administrateur,
Natal v Trust Bank van Afrika Bpk
1979 (3) SA 824
(A), Rumpff CJ emphasized, with reference to the fear of the
so-called “limitless liability”,
that this new cause of
action could be kept within reasonable bounds by giving proper
attention to,
inter
alia
the problem of
causation (see p 833 B).
[17]
As observed in Joubert et al (ed)
The Law of South Africa
2ed.
vol 8(1) at para 132, ‘
In essence, therefore, the question
of legal causation is not a logical concept concerned with causation
but a moral reaction, involving
a value judgment and applying common
sense, aimed at assessing whether the result can fairly be said to be
imputable to the defendant
’.
[42]
In the current case the claim for the need
for the support the appellant alleges he would have received from his
wife but for her
death in the collision arose, as mentioned, more
than two years after the collision itself.  Moreover, it arose
in the context
of an intervening event, which was entirely
unconnected to any wrongdoing by the insured driver.  The
anecdotal evidence suggests
that the appellant’s inability to
obtain replacement employment was due to the fact that his
retrenchment coincided with
a slump in the Canadian economy.
[43]
The elements of a loss of support claim
were identified by Corbett JA in
Evins v
Shield
supra, at 839B, as ‘(a) a
wrongful act by the defendant causing the death of the deceased, (b)
concomitant
culpa
(or
dolus
)
on the part of the defendant, (c) a legal right to be supported by
the deceased, vested in the plaintiff prior to the death of
the
deceased, and (d)
damnum
,
in the sense of a real deprivation of anticipated support’.
The critical date for the accrual of the claim is the
date of the
deceased’s death and the determination of
damnum
falls to be made with reference to that date.  Seen from the
perspective of the date of the insured driver’s wrongdoing,

which corresponded closely with the date of the deceased’s
death, the prospect of the second appellant becoming dependent
on the
deceased would have appeared unlikely, which also suggests that the
harm suffered was not readily foreseeable.  In
the
circumstances, and having regard to the effect of unrelated
intervening events, I do not consider that there is a proper basis
to
upset the trial judge’s finding that the appellant had not
satisfied the requirement of establishing legal causation.
[44]
I am also in any event not satisfied that
the evidence adduced in support of the second appellant’s claim
adequately established
the quantum of his loss.  In this regard
I have in mind the absence of any evidence concerning the pension
scheme of which
the appellant in all probability must have been a
member during his employment by Nortel and as to the existence or
prospects of
payment of a claim for retrenchment compensation against
the company under administration in bankruptcy protection.  In
the
latter respect it is evident from the content of the letter
advising the appellant of his retrenchment that it was contemplated

that the business of the company would be continued, or its
intellectual property disposed of for the benefit of creditors, for

the appellant was reminded that he remained subject to applicable
restraints and confidentiality obligations.  There was no

explanation as to why such evidence was not adduced, and it would not
have been for the trial court to try to make bricks without
straw in
the circumstances.
[45]
The appeal of the second appellant
therefore also falls to be dismissed.
The third appellant (Stephanie Sehinson)
[46]
As mentioned, the third appellant is the
daughter of the late J.S.  She was born on [……].
At the time of
the collision in which her mother was fatally injured,
the third appellant was in her third year of study towards a
four-year primary
degree in medical science at the University of
Western Ontario.  Upon receiving the news that her mother had
been injured,
she travelled to Cape Town with her father, the second
appellant, to be at the hospital bedside.
[47
]
In terms of her amended particulars of
claim the third appellant claimed general damages for ‘emotional
shock’ suffered
as a consequence of the death of her mother in
the collision.  It was alleged in that connection that she
continued ‘to
exhibit symptoms of a complicated bereavement and
post-traumatic stress syndrome’.  She also claimed damages
in respect
of loss of support, quantified in the sum of
Canadian $1300 per month for a period of four years from March
2007 until her
25
th
birthday in 2011.  In addition, the third appellant claimed the
sum of just over R1,3 million in respect of past and
future loss
of income due to the dislocation of her academic studies, allegedly
due to the effects of her ‘psychological
distress and/or
disorder’, and the consequential adverse influence on the
choice and commencement of her vocational career.
[48
]
The third appellant did not give evidence
at the trial.  The
viva voce
evidence adduced in support of her case comprised of that of Mr Piet
Crous, an industrial psychologist, and the aforementioned
Ms Burke.
(An actuary also gave evidence in respect of the computation of her
loss of support and income claims.)
The content of a
medico-legal report of the psychiatrist, Dr George, who examined the
appellant in July 2009, was admitted by the
respondent on the basis
described earlier. Certain documentation pertaining to the
appellant’s performance at university
was also put in evidence,
without objection by the respondent.
[49]
Dr George concluded that the third
appellant was ‘
suffering from a
major depressive disorder caused by a complicated bereavement
reaction following the death of her mother and aggravated
by the
downturn in her life situation, especially her failure to progress
with her studies, and her father’s own personal
unhappiness
’.
(There was no finding that the appellant suffered from a
post-traumatic stress disorder, as alleged in her particulars
of
claim.)
[50]
Ms Burke’s report on her
consultation with the appellant, also in July 2009, confirmed in her
oral evidence, concurred
with Dr George’s finding that the
appellant was suffering from a mood disorder.  She determined,
on the basis of
a score on the Becks Depression Inventory, that the
depression was ‘moderate’.
[51
]
Both Dr George and Ms Burke
recommended that the appellant should be treated on a course of
psychotherapy and anti-depressant
medication.
[52]
The trial court dismissed the third
appellant’s claims.  It appeared from the heads of
argument that the appellant was
appealing against the dismissal of
each of her heads of claim, but in a notice delivered two days before
the hearing it was intimated
that she was not proceeding with the
appeal in respect of the dismissal of her loss of support claim.
[53]
I shall deal first with the claim for
general damages.  In his judgment the trial judge expressed
disagreement with the submission
by the respondent’s counsel
that there was ‘a total absence of a factual link between the
diagnosis of depression and
the accident’, observing that there
was ‘certainly nothing to suggest that there was any other
cause for this condition’.
He was, however, of the
opinion that the failure of the appellant to testify, together with
shortcomings in the investigative quality
of the work of the
industrial psychologist and contradictions between the anecdotal
evidence reported by Dr George, Ms Burke
and Mr Crous gave rise
to such unresolved difficulties that ‘it would not be fair and
reasonable in the circumstances to
award a claim for general
damages’.
[54]
While the trial judge’s criticism of
the quality of the evidence and the discrepancies between the pleaded
case and the evidence
adduced was entirely justified and does have a
bearing on other heads of her claim, he was wrong, in my judgment, to
have denied
the third appellant any compensation in general damages
on that account.  The effect of the respondent’s admission
of
the report of Dr George was that it was common ground that the
appellant was suffering from a major depressive disorder as a
consequence
of her mother’s death.  Ms Burke’s
evidence confirmed, to the extent that confirmation was required,
that
the disorder was a recognised psychiatric disorder of a sort
conforming to the requirement expressed in
Bester
and
Barnard
.
It was indeed so that the condition had been
aggravated
by circumstances that were not necessarily, or sufficiently closely,
connected with the effects of the appellant’s mother’s

death, but that goes to the degree of the disorder, without
detracting from the evidence of its existence and its primary cause.

In the circumstances I consider that the evidential shortcomings
should have been taken into account by adopting a cautious and

conservative approach to determining the award that fell to be made,
rather than by dismissing the claim out of hand; cf.
Burger
v Union National South British Insurance Company
1975 (4) SA 72
(W) at 74-5.  There is evidence that the mood
disorder manifested in the appellant being anxious and moderately
depressed.
The disabling effect of the disorder was not,
however, such as to prevent her from working, or maintaining her
relationships with
a circle of friends.
[1]
I
should perhaps mention that the court a quo, apparently accepting the
characterisation suggested by the respondent’s counsel,
treated
the third appellant’s claim for compensation for psychiatric
injury as that of a so-called ‘hearsay’
victim, in the
sense that the expression was employed by Van Heerden DCJ in
Barnard
.
I agree with the submission by the appellant’s counsel
that the third appellant was not a ‘hearsay’
victim,
certainly not in a pure or complete sense.  The facts in
Barnard
were summarised earlier in this judgment.
[18]
Unlike the plaintiff in
Barnard
,
the third appellant came into the presence of the deceased shortly
after the collision and spent what must have been a traumatic
and
emotional few days by her mother’s bedside before Mrs J.S
succumbed to her injuries.  The trauma of hearing that
her
mother had been grievously injured in a collision was followed by a
period of direct exposure to her mother’s final suffering
and
death.  Without wishing it to be understood that I consider the
labels to be important, I would incline to describe the
third
appellant as a ‘secondary victim’ rather than a ‘hearsay’
one.  The distinction really does
not seem to be material on the
peculiar facts.  The relationship between a parent and child is
plainly one that would make
it readily foreseeable that either might
suffer psychiatric injury as a result of the traumatic and violent
death of the other.
The interval between the collision and the
ensuing death of Mrs J.S was relatively short, so it cannot be said
that the connection
between the insured’s driver’s
wrongdoing and the ensuing death was so tenuous as to call into
question whether the
negligence was legally causal of the resultant
damages.
[55
]
In all the circumstances there was no
reason in policy to deny the remedy and absolve the Road Accident
Fund from statutory liability.
The third appellant’s
appeal against the dismissal of her claim for general damages will
therefore be upheld.
[56]
The respondent’s counsel argued that
the effect of the evidence was to show only that the third appellant
was suffering from
a relevant mood disorder caused by her complicated
bereavement at the time that she was seen by Dr George and Ms Burke
in
July 2009, and that there was no evidence as to the position
before or after that date.  On that basis counsel contended that

the injury should be treated as a matter
de
minimis
, and compensation not awarded.
The argument was misconceived in my view.  The evidence of
Ms Burke concerning ‘complicated
bereavement’ would
suggest a type of prolonged and unresolved grieving.  The
probabilities are that the condition observed
by Dr George in July
2009, which was admittedly reflective of the appellant’s
response to the death of her mother, would
have been manifest during
the intervening period from early 2007 to 2009.  Ms Burke’s
description of the condition
indicated that the depression would not
have been unmitigated throughout that period, but would have
manifested in waves with intervening
periods of normality.  I do
not consider, however, that the respondent should be liable to
compensate the appellant for the
aggravating effect of extraneous
causative factors unconnected to the insured driver’s
negligence.  The contention by
the appellant’s counsel
that the respondent should be liable in this respect on the basis of
the principle that a wrongdoer
takes his victim as he finds him
suggests a misunderstanding of the principle.  The effect of the
principle is not to make
a wrongdoer liable for harm he did not
cause.
[19]
There was no evidence that the appellant’s depression about her
father’s loss of employment and reduced financial circumstances

would not have occurred had she not already been depressed on account
of her complicated bereavement.
[57]
In all the circumstances there was no
reason in policy to deny the remedy and absolve the Road Accident
Fund from statutory liability.
The third appellant’s
appeal against the dismissal of her claim for general damages will
therefore be upheld.
[58]
We were not referred to any cases closely
in point in respect of the quantification of damages.  We thus
have to do the best
we can.  As mentioned, notwithstanding her
depression, the appellant was able to maintain a reasonably
functional and intact
social and working life.  In the
circumstances I consider that an award of R50 000 would meet the
justice of the case.
[20]
[59]
Turning to the third appellant’s
claim for loss of income.  As mentioned, the claim was
predicated on the alleged dislocation
of the appellant’s
academic studies and the resultant delay in the commencement of her
post-graduate career.  In order
for the loss of income claim to
enjoy any prospect of success, it was necessary that the third
appellant prove that but for the
effect on her of her mother’s
death she probably would have completed her degree in June 2008.
The evidence fell short
of what was required.
[60]
While it would seem that the appellant had
satisfactorily completed
the
her
first and second years of the degree course, it is evident that the
picture changed in the third year.  The evidence as to
the
circumstances and timing of the deterioration in her performance was
unclear.  The documentary record reflects that the
appellant
withdrew from a number of courses for which she had enrolled in the
2006/2007 academic year.  While Mr Crous
recorded in his
report that the appellant was informed that her mother had been
injured shortly before she was due to commence
writing the
examinations (i.e. in February 2007) and Ms Burke stated in hers
that she had been told that the appellant was
busy with her
examinations when she learned about her mother’s misadventure,
the witnesses who testified at the trial were
unable to controvert
the information derived by the respondent’s counsel from the
university’s website that the mid
year examinations are written
in December each year.
[61]
The evidence of Mr Crous and Ms Burke about
the circumstances of the appellant’s poor performance in the
2006 fall/winter
examinations
was
not only inconsistent, it was also hearsay in nature.  The
respondent’s lead counsel made it clear early in the trial
that
he objected to the admissibility of the hearsay evidence of the
expert witnesses as evidence of the facts.  It was evident
that
counsel who represented the appellants at the trial had initially
thought that he would be able to conduct the claimants’
cases
without adducing their evidence.  The objection by the
respondent’s counsel alerted the appellant’s advocate
to
the perils of his intended course and a postponement of the
part-heard trial was obtained to enable the claimants to be called.

Most of them did subsequently give evidence, but the third appellant
did not.  No reason for her failure to have done so was
put on
record.  (During the trial, interjections by the appellant’s
counsel during the cross-examination of Mr Crous
by the respondent’s
counsel suggested that the former might have considered it
unnecessary to call the third appellant because
there was agreement
between the parties’ industrial psychologist expert witnesses
as to the appellant’s likely career
path.  If that was the
case, he was misdirected.  It was apparent that the joint minute
signed by Crous and one Fritz,
an industrial psychologist initially
engaged by the respondent, was produced in circumstances in which
Fritz had not had an opportunity
to investigate the case.  The
minute had been produced under very tight time constraints only in
order to comply with the
directions of the judicial case manager.
Qualitatively, it did not bear scrutiny.  It was also apparent
that the acceptance
by Mr van Huyssteen - the industrial psychologist
subsequently engaged by the respondent, who testified at the trial
–of
the career path postulated in Crous’s report was
offered with the express (and appropriate) reservation that the
matter would
depend on the supporting factual evidence, which he had
been unable to verify.  During Crous’s cross-examination,
it
became painfully apparent that the witness’s investigation
of the factual background had been, at best, superficial.
In
some instances, such as concerning the subjects written by the third
appellant during the 2007/8 academic year, Crous’s
report was
inconsistent with the content of documentation which he had obtained
from the university.  The trial court was
thus not bound to
attach any weight to the apparent agreement between the experts.)
[62]
In the result it was unclear when the
appellant withdrew from, or ‘dropped’
[21]
half the courses for which she was listed in the first part of the
2006/7 academic year.  It was also unclear why she was
unable to
continue with her studies.  Her course record shows that in the
second half of the 2006/7 academic year (that is
after her mother’s
death) she successfully completed two courses which she had not taken
in the mid-year examinations.
It seems that she ran into
further difficulty in the 2007/8 academic year, although Crous
appears to have been incorrect when he
suggested that she had failed
most of her courses that year.  The documentary records indicate
that she was placed on anti-depressant
medication between January and
March 2008, but this was discontinued because the side-effects made
her feel physically unwell.
I agree with the trial judge that
the circumstances of the third appellant’s apparent ability to
pursue her studies in the
months after her mother’s death and
her subsequent lack of progress in the 2007/8 academic year is
something that cried out
for, but did not receive, adequate
investigation and explanation.  Ms Burke opined that the
third appellant was disabled
by her depressive disorder from
continuing with her studies until she had been successfully treated.
But that opinion does
not explain why the appellant was able to cope
successfully with the courses she passed after her mother’s
death.  The
third appellant’s failure to do well in or
pursue her studies also has to be judged in the context of her
ability to hold
down employment during the relevant period and the
fact that there was a significant stressor in her life in the period
from 2008
related to the insecurity of her father’s employment
(the anecdotal evidence indicated that many of Mr J.S’s
co-employees
at Nortel were being retrenched during 2008) and his
subsequent retrenchment in May 2009.  Documentation to which we
were
taken by the appellant’s counsel during the argument of
her appeal indicated that
the appellant
she
had been placed on probation by the university, but had failed to
meet the conditions of probation.  The effect of this failure

appears to have been that she was barred from pursuing her degree
course for a year.  The evidence did not illuminate why
the
appellant was placed on probation, what the character of the
probation was, or what its terms were.  The context - to
the
extent that it has been established - raises questions about the
cogency of Ms Burke’s opinion as to the objectively

discernible effect of the appellant’s depression and suggests
that the failure of the appellant to pursue her academic career
might
have been just as much due to extraneous factors that had nothing to
do with the consequences of the insured driver’s
negligence.
[63]
In the circumstances I have not been
persuaded that the court a quo erred in dismissing the third
appellant’s claim for loss
of income.
[64]
The third appellant has achieved
substantive success on appeal and is thus entitled to her costs in
the appeal, as well as her costs
of suit at first instance.  (I
do not propose to follow the rather unusual approach of the trial
court on costs, which was
to award costs componentially, awarding
them in favour of those of the claimants in respect of the heads of
claim on which they
were successful and awarding costs against them
on heads of claim on which they did not succeed.)  Three
counsel, including
a silk, were engaged to argue the appeal on the
appellants’ behalf, whereas only one advocate appeared for them
at the trial.
In my view the third appellant’s recoverable
costs in the appeal should include the fees of only one counsel, and
for the
assistance of the taxing master I would indicate that I think
that the engagement of a counsel of senior-junior standing would have

sufficed to meet the demands of the case.
The fourth appellant (Jivan Shya Ng Pan Hing, known as
Dominique)
[65]
The fourth appellant delivered notice two
days before the hearing that she would not proceed with her appeal.
The notice was
not accompanied by a tender to pay the respondent’s
wasted costs.  No reasons were advanced why the appellant should

not in the circumstances be ordered to pay the wasted costs of the
respondent in her appeal, including the costs of two counsel.

As the appeal was not withdrawn, it seems appropriate in the interest
of finality that an order be made dismissing it.
The fifth appellant (Jeanette Sehinson)
[66]
The fifth appellant, a resident of Sydney,
Australia, was born on 13 November 1949, and thus 57 years of
age at the time of
the collision.  She was employed at the time
as a payroll clerk by a large company, and was still so employed when
she gave
evidence at the trial, in February 2011.  It was
alleged in her particulars of claim that she sustained a soft tissue
injury
of the left knee (described in the report of
Prof Driver-Jowitt as ‘effusion left knee’), an
abrasion elbow [?]
and a fracture of the pelvis.  The latter
injury and its consequences were by far the most significant feature
of the appellant’s
case.  It was uncontested that as a
consequence of the collision the appellant suffered from a
posttraumatic stress disorder
that manifested especially in a fear of
driving and being in crowded shopping malls and that she also
suffered from ‘symptoms
of chronic major depressive disorder’.
Ms Burke determined her depression to be of moderate severity
using the Becks
Depression Inventory.  The pleaded claim made no
reliance on the psychiatric or psychological effects of the
collision, but
despite this the respondent agreed to the admission of
the reports of Dr. George and Ms Burke in evidence, and
made no
objection to Ms Burke’s oral evidence in support
of the appellant’s claim.
[67]
The only issue that the fifth appellant is
pursuing on appeal is the dismissal of her claim for compensation for
loss of earning
capacity.  The appellant’s pleaded claim
for loss of earning capacity was founded on two postulates,
apparently stated
in the alternative.  The first was that she
would be forced to retire from her current employment at least three
years earlier
than the age of 70, which had been her intended
retirement age, and the second was that as a consequence of the
sequelae
to her injuries the fifth appellant would suffer a forfeiture or
delay in obtaining the promotion that she would otherwise have

obtained in 2011 to a position commanding ‘almost double’
the salary of the position that she did hold.
[68]
The trial judge appears to have accepted
the appellant’s evidence that she intended to work until 70.
I believe that
he was correct to have done so.  Her evidence in
this connection was forthright and convincing.  It was to the
effect
that she still intends to work until 70 and considers that she
will be able to achieve this.  The claim that was advanced based

on the prospect of forced early retirement, notwithstanding the
appellant’s own views on the subject, was premised on the

opinion of certain expert witnesses, only one of whom (Ms Burke)
gave oral evidence.
[69]
Dr. George, the psychiatrist, made no
observations whatsoever in his original report that would suggest
that the appellant’s
ability to continue working had been
meaningfully compromised.  His diagnosis appears to have been
premised on what he recorded
the appellant as having relayed to him.
As to depression, the only symptoms he described were the appellant’s
report
that she was ‘still emotional and cries a lot and …
has difficulty sleeping’.  This was balanced by the

information that the appellant’s appetite was normal, her
weight stable and that she remained socially active.
[70]
However, in an
addendum report written in response to a letter from the appellant’s
attorney, dated 30 September 2009,
Dr George gave a far
more pessimistic impression of the appellant’s condition than
he had in his main report.
What had previously been described
as ‘
symptoms of
a major depressive disorder’ became a diagnosis that the
appellant was suffering from ‘chronic major depressive
disorder’.
The previously expressed opinion that the
appellant would benefit from a course of cognitive behavioural
psychotherapy, with antidepressant
medication to be considered
depending on the outcome of such psychotherapy, became an opinion
that even with ‘optimal treatment’
there would always be
‘residual symptoms of chronic posttraumatic stress disorder,
which will be aggravated by persistent
discomfort from chronic
pain’.  In his addendum report Dr George opined that
the appellant ‘is severely disabled
by her psychological and
physical symptoms, she is able to commute independently to work but
only with difficulty; even with optimal
treatment it is unlikely that
[the appellant] will be able to pursue her occupation for much longer
due to her disabilities, and
despite her previous intention to work
until the age of 70 years, she will most likely need to take early
retirement’.
[71]
What is striking upon a consideration of
the two reports produced by Dr George is the absence of any
explanation why the pessimistic
outlook expressed in the addendum
report had not been reflected in the main report.  There is also
no indication in either
report of any insight by Dr George into
how the appellant was actually coping at work, even without the
intervention of psychotherapy
or anti-depressant medication.
The absence of any reasoning in support of the conclusions expressed
in either of the reports
is also striking.
[72]
Ms Burke also produced an addendum report
in response to a letter from the appellant’s attorney dated
30 September 2009.
In Ms Burke’s case the
addendum report did not have anything like the markedly different
complexion from the original
manifested in Dr George’s
reports.  Ms Burke did opine that it was unlikely that the
appellant would be able to
complete the diploma course for which she
had subscribed without effective psychotherapeutic or psychiatric
treatment.  She
recorded that the appellate was unwilling to
undergo such treatment.  The tenor of Ms Burke’s
addendum report would
seem to suggest that she was under the
impression that completion of the diploma course would assure the
appellate a promotion
at work.  In that context she opined:
Completing
her financial diploma course and gaining promotion at work under
these circumstances [i.e. without effective therapeutic
intervention]
is highly unlikely and therefore the trajectory of her career has
undoubtedly been compromised.
Ms Burke also appeared to have been under the impression that
the appellant’s functioning in the workplace had deteriorated

since her injury in the collision because she spoke of the effect of
psychotherapy and medication as being to ‘to enable
[the
appellant] to maintain her
previous
form of occupational
functioning’ (italicisation provided for emphasis).
Ms Burke’s addendum report concluded
with the following
comments:
However the passage of time is known to ameliorate even
the greatest losses and depressive episodes themselves can resolve
over
time.  Although her psychological response will be
maintained by her physical difficulties it may be possible for her
when
she has processed the events of 2007 to improve.  The fact
that she is about to turn 60 in November 2009 may mitigate (sic)

against her ability not only to accomplish this but to take on new
occupational challenges.
[73]
Prof Driver-Jowitt noted that as at
July 2009 the appellant continued to suffer pain in the pelvis.
She reported to him
that she was unable to sit for more than
15 minutes and that she had an altered ‘ambulatory
pattern’, which made
it more energy consuming to walk and
resulted in her being less stable on her legs.  He stated that
continued pain in the
appellant’s right sacro-iliac joint and
the abutment, identified radiologically, of her right L5 transverse
process onto
the iliac blade would justify surgery to fuse the
sacro-iliac joint with the fifth lumbar vertebra.  He opined
that ‘it
is probable that continuing to work in her
previous
occupation will become untenable and it is unlikely that she could
continue to work into the near future’ (italicisation
supplied
for emphasis).
[74]
It is not explained why Prof Driver-Jowitt
described the appellant’s current occupation as ‘her
previous occupation’.
As in the case of Dr George,
Prof Driver-Jowitt’s report does not indicate any investigation
of or insight into the
appellant’s actual performance at work
subsequent to her injury.
[75]
The appellant’s evidence was that she
returned full time to work in September 2007 after a period of
convalescence, during
which she had gradually increased the time that
she was able to spend daily at work.  She appears to have a
supportive employer.
Investigation into her performance at work
since she resumed her fulltime employment indicated that she has been
performing at
pre-injury levels.  One has, I think, to
judge her own evidence that she still intends to retire at 70 in this
context.
The appellant also testified that the advice she had
received from her treating doctors in Australia was that fusion
surgery was
not indicated.
[76]
Ms Pringle, the occupational therapist,
reported that the appellant walked with a normal gait and sat through
the four assessments
she conducted ‘without any obvious
discomfort’.  Ms Pringle found that the appellant
experienced discomfort when
crouching and needed support when rising
from a crouched position.  She also found that the appellant’s
balance had
been compromised in that she needed bannister support
when ascending or descending stairs, but that notwithstanding these
disabilities
the appellant was generally ‘agile and mobile’.
Ms Pringle’s anecdotal evidence that the appellant enjoyed

taking drives into the countryside outside Sydney with her husband
over weekends, occasionally staying away overnight during long

weekends and that she also continued to take trips overseas from
Australia was confirmed by the appellant in her own testimony.

The occupational therapist was of the opinion that the appellant
would be able to continue with her current type of work ‘as

long as she wishes to’.
[77]
Certainly, the appellant’s own
evidence, corroborated by the reports from her supervisors garnered
by the industrial psychologists
as well as the report by Ms Pringle,
gives a far more positive picture than the gloomy forecasts of
Dr George and Prof
Driver-Jowitt.
[78]
It would be reasonable to accept that the
effects of her injuries did disrupt, and may even have ended, the
fifth appellant’s
continued study towards a four-year diploma
course in accounting.  Whether or not the appellant would have
completed the course
but for the collision is a matter for
speculation.  Completion of the course would have improved her
chances of promotion,
but would have afforded no guarantee of more
remunerative employment.
[79
]
It is clear that the learned acting judge
in the court a quo took all the evidence fully into account.  He
preferred the evidence
of the appellant herself, supported by the
opinion of the occupational therapist, that she would be able to
continue to work until
her planned retirement age.  As the judge
put it, ‘The opinion of Ms Pringle…seems to me to
reflect a situation
which in the light of the totality of the
evidence is most probable and reasonable’.  The trial
judge also held, after
considering both the positives and the
negatives, that it had not been established as a matter of
probability that the appellant
had lost the likelihood of promotion
to a better paying position before her retirement.  In my view
the judge’s conclusions
have not been shown to be wrong;
indeed, there was nothing in the appellant’s heads of argument
to show where it is contended
that the judge went wrong.  In
oral argument counsel submitted that the opinion of Prof
Driver-Jowitt should have been accepted
by the trial court in
preference to that of Ms Pringle.  I do not agree.
The trial court’s approach, which
weighed all the evidence
holistically in determining upon a conclusion, cannot be faulted.
[80]
The appeal of the fifth appellant will
therefore be dismissed.
The sixth appellant (whose name was variously rendered in her
combined summons as Men Ha Shya Ng Poon Hing or Men Ha Choo Fun
Young,
and who is called Marie-Noelle)
[81]
The sixth appellant also gave notice two
days before the hearing that she would not proceed with her appeal.
There was no
tender to pay the respondent’s wasted costs.
In this case, as in the matter of the fourth appellant, an order will
be made dismissing the appeal and directing that the appellant shall
be liable to pay the respondent’s wasted costs on appeal,

including the costs of two counsel.
Appeals against costs orders made by the trial court
[82
]
In supplementary heads of argument filed on
the day before the hearing, the appellants advanced submissions on
three of the costs
orders made by the trial court.  The costs
orders against which the appellants thus appeal were (i) an
order declaring
that ‘the costs of the overseas journeys by the
parties on behalf of the Plaintiffs are not awarded’ (para 7
of
the orders made by the trial court s.v. ‘
Terms
of payment and costs
’); (ii) an
order directing that the appellants had to pay the wasted costs
occasioned by the postponement of the trial on
7 June 2010
(para 8 of the orders made by the trial court s.v. ‘
Terms
of payment and costs
’) and
(iii) an order that ‘each party is to bear half the costs
of preparing the transcript in this matter’
(para 10 of
the orders made by the trial court s.v. ‘
Terms
of payment and costs
’).
[22]
[83]
The declaration on the costs of ‘overseas
journeys’ was not felicitously worded.  The foreign travel
and attendances
to which the order was apparently directed related to
a round the world trip undertaken by counsel who appeared for the
appellants
at the trial, the appellants’ attorney and Mr Crous,
during which, at stops in Mauritius, Sydney, Australia, and Ontario,

Canada, the two legal practitioners and the expert witness consulted
with some of the appellants and other persons connected with
the
third appellant’s history at university and concerning the
employment of the second, fifth and sixth appellants.
We were
informed by the respondent’s counsel that the respondent had
sought a declaration that the expenses related to this
exercise
should not be recoverable.  Unfortunately, the judgment of the
court a quo did not set forth the reasons for making
the
declaration.  In my view, however, the court a quo erred in
principle in granting it.  It is for the taxing master
to
determine what attendances and expenses to allow as being reasonably
necessary for the conduct of the litigation; see uniform
rule 70(3).
While it is permissible, and indeed often useful, for the court in
its judgment to express its views on costs-related
issues for the
assistance or guidance of the taxing master, judges should not usurp
the latter’s role and functions, cf.
Transnet
Ltd. t/a Metrorail and Another v Witter
[2008] ZASCA 95
;
2008 (6) SA 849
(SCA),
[2009] 1 All SA 164
at para 19 and AC
Cilliers,
Law of Costs
(LexisNexis
loose-leaf edition) at 13.11.
[23]
[84]
In the current case one of the issues that
would require consideration in the taxation of the contested fees,
expenses and attendances
is the ability to have obtained the
information or evidential material gathered during the journey
remotely, using modern means
of communication.  There was some
indication in the evidence that interviews conducted with
representatives of the fifth appellant’s
employer might not
have been possible remotely and that the degree of cooperation
obtained was achieved by the industrial psychologist
only by having
been physically present in Sydney.  On the other hand it is not
that clear why a visit by the trio to Mauritius
was necessary.
Another question that arises is that even if it is determined that
say a trip by the industrial psychologist
was reasonably necessary,
was it necessary that he be accompanied by the legal representatives,
and if so, whether the presence
of not only the attorney, but also
the advocate was required.  I mention these observations merely
to illustrate that the
question of what, if anything, should be
allowed on taxation in this regard, raises multi-faceted matters,
which were not fully
debated before us and which, in any event,
should properly be argued before, and determined by, the taxing
master.
[85
]
The trial judge also did not provide any
reasons in respect of the second of the abovementioned costs orders.
It was argued
on behalf of the appellants that the respondent should
have borne the costs of the postponement of the trial because the
need for
the postponement fell to be ascribed to the respondent’s
late notice in terms of rule 36(9) in respect of the expert evidence

of Mr van Huyssteen.  The postponement was required in order to
enable some of the appellants to come to South Africa to give

evidence at the trial.  I am not convinced that the late notice
was the sole or primary reason for the change of heart by
the counsel
who conducted the trial on behalf of the appellants about running the
case without calling them as witnesses.
As mentioned earlier,
it appears to me rather that counsel’s initial approach was
based on a misapprehension about the effect
of the admission by the
respondent of various expert opinion summaries.  In the
circumstances I am not persuaded that we can
find that the trial
judge misdirected himself in the exercise of his discretion in
directing the appellants to pay the wasted costs
occasioned by the
postponement.
[86]
As to the third costs order, it is usual
for parties who require a transcript of trial proceedings to be
produced during the course
of a trial to agree amongst themselves how
the cost of obtaining it will be met.  That evidently did not
happen in the current
case.  In this case too the order made was
not particularly happily worded because there were in fact seven
parties to the
action proceedings being tried.  The intended
meaning is clear enough, however.  It is that the respondent
bear half
of the cost and the appellants, between them, the other
half.  I do not think that the trial judge misdirected himself
in
making such an order having regard to the fact that the appellants
elected to consolidate their actions for the purpose of trial
and
that some of them succeeded with their claims and some did not.
Indeed, this aspect of the appeals was not strongly pressed
in
argument by the appellants’ lead counsel, advisedly so.
[87]
The appellants’ success in having
para 7 of the orders made by the trial court s.v. ‘
Terms
of payment and costs
’ set aside
does not merit reflection in the costs of the appeals.  It
merely affects how the principal costs orders
made by the trial court
(which remain unaltered) will be dealt with on taxation.
The record on appeal
[88]
Not only was the record on appeal lodged
out of time.  It was in an unsatisfactory state.  It
contained a considerable
amount of material that should have been
omitted.  We were at least favoured with a note from the
appellants’ counsel
in terms of Western Cape Consolidated
Practice Note 46(5) advising us of the significant portions of the
record that it was unnecessary
for us to read.
[89]
An appellant’s attorney is under an
obligation to ensure that the record on appeal is not burdened with
unnecessary and superfluous
material, and to seek to obtain the
agreement of the respondent’s legal representatives to its
exclusion.  The issue,
and the extent to which the obligation is
too often honoured in the breach than the observance, was
comprehensively rehearsed in
the recent full court judgment in
Eye
Site Gauteng Incorporated and Others v Stanley & De Kock
Optometrist Incorporated
[2012] ZAWCHC
103
(3 February 2012) at para 39-51.  Counsel were called upon
in terms of a memorandum issued by the presiding judge to address
why
a punitive costs order should not be made for non-compliance with the
obligation in the current case and what form it should
take.
The appellants’ counsel argued that we should do no more than
disallow the recovery by the appellants’
attorney from his
clients of a portion of the costs of preparing the record.  The
respondent’s counsel argued that the
appellant’s attorney
should be ordered to pay a portion of the respondent’s perusal
costs
de bonis propriis
.
In my view the approach contended for by the appellants’
counsel would meet the justice of the matter.  The respondent’s

attorney would in any event have had to consider the request that the
appellants’ attorney should have made to agree on a
curtailed
record and in the course of that exercise would no doubt have had to
peruse much of the material that fell to be left
out in order to
satisfy himself that its exclusion was appropriate.  In the
circumstances I consider that it would be appropriate
to order that
the appellants’ attorney be precluded from recovering 25% of
the costs of preparing the record from his clients.
(The fees
that the appellants’ attorney is precluded from recovering
against his clients will obviously also not be taxable
against the
respondent in respect of the third appellant’s appeal.)
Orders
[90]
The following orders are made:
1.
Save as provided in para 4, below, the
appeals of the first, second, fourth, fifth and sixth appellants are
dismissed with
costs, including the costs of two counsel.
2.
The appeal of the third appellant is upheld
in part as follows:
2.1
The order of the court a quo dismissing the
third appellant’s claims with costs is set aside and
substituted with an order
awarding the third appellant the sum of
R50 000 as compensation in respect of her claim for general
damages (excluding loss
of earning capacity).
2.2
The respondent is ordered to pay the third
appellant’s costs of suit in the court a quo, which shall
include the qualifying
fees of Dr George and Ms Burke.
2.3
Subject to the further provisions
concerning costs in para 5, below, the respondent is also
ordered to pay the third appellant’s
costs on appeal, including
the costs of one counsel.
3.
Save to the extent set out in para 2
and para 4, the third appellant’s appeal is otherwise
dismissed.
4.
The declaration as to costs made in
paragraph 7 of the orders made by the court a quo s.v. ‘Terms
of payment and costs’
is set aside.
5.
The appellants’ attorney is precluded
from recovering from the appellants 25% of the fees and expenses to
which he would otherwise
have been entitled in respect of the
preparation of the record on appeal.
6.
The appellants are ordered, jointly and
severally, the one paying the others being absolved, to pay the
respondent’s costs
in respect of the condonation application.
A.G.
BINNS-WARD
Judge of the
High Court
We concur:
B.M. GRIESEL
Judge of the
High Court
T.C. NDITA
Judge of the
High Court
Before:

Griesel, Ndita and Binns-Ward JJ
Hearing:

29 January 2014
Judgment
delivered:
13 February 2014
Appellants’
counsel:
M.A. Crowe S.C.
A.K. Blommaert
P. Eia
Appellants’
attorneys:
Allan G Jones Inc,
Goodwood
Respondent’s
counsel:          T.D.
Potgieter S.C.
A.
Bhoopchand
Respondent’s
attorneys:       Marais Muller Yekiso
Cape Town
[1]
In
Himanchal
v Moharom
1947 (4)
SA 778
(N) at 780 I, it was observed that a ground of appeal is bad
if it specifies the finding of fact or rulings of law so vaguely as

to be of no value either to the court or the respondent.
[2]
Aldisert,
Opinion
Writing
, (1990) at
89, commended to Australian counsel by McHugh J in
Tame
v New South Wales
[2002]
HCA 35
, at para 70.
[3]
A notice of appeal is fatally
defective if it does not set out the grounds on which the appellant
is going to rely, but is ‘so
widely expressed that it leaves
the Appellant(s) free to canvas every finding of fact and every
ruling of law made by the court
a quo’; see
Songono
v Minister of Law and Order
1996 (4) SA 384
(E) at 385G-H.
[4]
In the full court’s judgment
in
Kloof Investment
2004 CC v Gary Isaacs t/a Build-O-Rama Builders Merchants
WCC case no. A900/10 (5 August 2011), it was observed (at
para 16) that it was incongruous that a more onerous procedure

should apply to appeals to the full court than to the SCA.  It
was indicated (at note 3) that the incongruity would be drawn
to the
attention of the Rules Board so that the Board might consider
harmonising the applicable procedures.  This was duly
done,
thus far to no effect.
[5]
At para. 19,
[6]
It is thus unnecessary to deal with
an application to amend the first appellant’s particulars of
claim that was moved in
terms of supplementary heads of argument
submitted after the hearing of the appeals.
[7]
Per Lord Steyn in
White
’s
case supra, at 35.
[8]
Sed contra
the judgment of Callinan J at para 334.
[9]
The principal judgment given in
Tame
(per Gummow and Kirby JJ) referred approvingly to the Supreme Court
of Appeal’s judgment in
Barnard
v Santam Bpk
[1998] ZASCA 84
;
1999
(1) SA 202
(SCA) with regard to the contextual inaccuracy of the
term ‘sudden shock’ and the rejection of the requirement
of
direct perception by the claimant of the event giving rise to the
subsequent psychiatric illness.
[10]
Or ‘a recognised and
detectable psychiatric injury’, as it was put in
Road
Accident Fund v Sauls
2002 (2) SA 55
(SCA), at para 2.
[11]
Waring and Gillow Ltd v Sherborne
1904 TS 340
,
Sueltz
v Bolttler
1914
EDL 176
and
Mulder
v South British Insurance Company Limited
1957
(2) SA 444
(W).
[12]
Van Heerden DCJ’s perspective
falls to be contrasted with the following observations of Lord Steyn
in
White and Others
v. Chief Constable of South Yorkshire and Others
supra, a judgment delivered in England only three months after that
in
Barnard
was
handed down: ‘
In
1982 in
McLoughlin
[
McLoughlin v
O'Brian
[1982] UKHL 3
;
[1983] 1
AC 410
,
[1982] 2 All ER 298
(HL)]
the
House acted on the reassuring picture that the ". . . scarcity
of cases which have occurred in the past, and the modest
sums
recovered, give some indication that fears of the flood of
litigation may be exaggerated . . .": at 421H, per Lord

Wilberforce. This assumption has been falsified by the growth of
claims for psychiatric damage in the last ten years. In
Fear
for the Future: Liability for Infliction of Psychiatric Disorder,
essay in Torts in the Ninetie
s
(1997) ed. Nicholas J Mullany, the editor has attested to the
"growing appreciation that the scope for psychiatric suits
is
much wider than traditionally perceived" and he listed the
expansion into claims for workplace stress; suits by members
of the
armed services in respect of mental suffering; claims for
psychiatric damage against medical practitioners and health

authorities; and so forth. In addition the same author stated that
there has in recent years been a steady growth in Australia
in the
more common place psychiatric injury proceedings based on the death,
injury or imperilment of loved ones or fear of
ones
one’s
own safety: at 112. Moreover, nowadays it would be quite unrealistic
to describe awards for psychiatric damage as modest.
’
[13]
See, for example,
White
supra, at 33.
[14]
See
Tame
supra, at para 194.
[15]
The position was, with respect, well put by Lord Wright
in
Davies v Powell Duffryn Associated
Collieries Ltd.
[1942] A.C. 601
at 617: ‘
In
effect the court, before it interferes with an award of damages,
should be satisfied that the judge has acted on a wrong principle
of
law, or has misapprehended the facts, or has for these or other
reasons made a wholly erroneous estimate of the damage suffered.
It
is not enough that there is a balance of opinion or preference. The
scale must go down heavily against the figure attacked
if the
appellate court is to interfere, whether on the ground of excess or
insufficiency
’.  Cf. also
Road
Accident Fund v Delport NO
2006 (3) SA 172
(SCA) ([2006]
1 All SA 468)
at para 22.
[16]
‘
As far as the respective
criteria are concerned, it also does not appear to me that they are
much more precise as a standard (the
supple standard) according to
which it is determined, by reference to policy considerations,
whether a sufficiently close connection
exists between cause and
effect.  By that I do not suggest that one or even more of the
criteria cannot usefully be applied
subsidiarily in the application
of the supple standard on a particular set of facts, but only that
not all of the criteria can
apply in every kind of factual context,
or be used in every case as a more concrete basis for determining
the limits of legal
liability’ (my translation).
[17]
The learned Chief Justice’s
exposition is so well-known that ordinarily it would not have been
called for to set it out
in
extenso
.  I
have quoted it in full only because I am mindful that this judgment
will be read by the litigants who are outside this
country and
probably will not have their South African legal advisors close at
hand to explain the arcane concept of legal causation.
[18]
At para [19].
[19]
Compare the observation by Lord Goff of Chieveley in
White
supra, at 11
fin
that the
egg-shell skull rule is ‘a principle of compensation, not of
liability’.
[20]
Compare the award of R60 000 in
what I regard to have been the more serious case of psychiatric
injury in
Mokone
v Sahara Computers (Pty) Ltd
(21881/09)
[2010] ZAGPPHC 279 (25 November 2010)
.
[21]
The third appellant stated in an
email to Mr Crous that she had ‘dropped’ the courses.
The email had been sent in
response to an enquiry directed to her
during the trial as to the meaning of the abbreviation ‘WDN’
on her academic
course record.  The implication of dropping a
course suggests something quite different to me to merely not
writing the
examination.  But whatever the actual position, the
appellant’s failure to testify left the court unable to
determine
the facts with sufficient confidence.
[22]
There was no appeal against the
award by the trial court of costs on a componential basis in respect
of the claims of the first,
fourth and sixth appellants in terms
whereof some of these appellants’ heads of claim were upheld
with costs and others
dismissed with costs; an approach that will
certainly make the taxation of the costs pertaining to those actions
a rather complicated
exercise.
[23]
The respondent’s counsel
sought to defend the trial judge’s declaration relying on a
dictum
by Innes CJ in
Kruger
Bros & Wasserman v Ruskin
1918 AD 63
AD at 69 that ‘…
the
rule of our law is that all costs – unless expressly otherwise
enacted – are in the discretion of the Judge
’.
Read in context, however, it is clear that the learned Chief Justice
meant no more than it is in general within
the sole discretion of
the judge, to be exercised judicially, of course, whether to award
costs in favour of one party or another,
irrespective of the result
of the case.  The question in issue in
Kruger
Bros
was whether
the appeal, which was solely against the order of the court of first
instance as to costs, was properly before the
Appellate Division
without leave of the court a quo in the face of s 3(b) of Act 1
of 1911, which provided ‘
No
judgment or order made by consent, or as to costs only, which by law
are left to the discretion of the Court, and no interlocutory
order
shall be subject to appeal, save by leave of the Court or Judge
making the order
’.
The question in the current case is whether, and if so, to what
extent, the fees and expenses related to the overseas
expedition in
terms of the costs order made in favour of the first, fourth, fifth
and sixth appellants should be allowed
consequent
upon
in
paragraph 5 of the orders made in the trial judgment.  Those
are questions for the taxing master to determine.