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COLLINS v ADMINISTRATOR, CAPE 1995 (4) SA 73 (C)

1995 (4) SA p73 Citation 1995 (4) SA 73 (C) Case No 4500/93 Court Cape Provincial Division Judge Scott J Heard November 28, 1994; November 29, 1994; November 30, 1994; December 1, 1994;

December 5, 1994; December 6, 1994; December 8, 1994; December 9, 1994; December 12, 1994; December 19, 1994; December 20, 1994

Judgment February 9, 1995 Annotations Link to Case Annotations

Flynote : Sleutelwoorde

Negligence - What constitutes - Hospital patient - Duty towards - Patient entitled to be treated with due and proper care and skill - Such care and skill that which a reasonable practitioner would ordinarily have exercised under similar circumstances - Standard of excellence beyond financial resources of hospital authority cannot be expected.

Negligence - Action for damages - For bodily injuries - Non-pecuniary damages for pain and suffering, shock, discomfort, loss of amenities and shortened life expectation - Plaintiff having become permanently unconscious for rest of her life as result of defendant's negligence - No basis for awarding such a plaintiff aforesaid non-pecuniary damages - Delictual action for damages compensatory, not punitive - No room for nominal award to reflect society's demand for some retribution for injustice done to plaintiff.

1995 (4) SA p74

Negligence - Action for damages - For bodily injuries - For loss of amenities of life - No basis for accepting in South African law distinction between subjective and objective element in loss of amenities of life - As such claim not transmissible to deceased estate, need for such distinction not arising in South African law.

Negligence - Action for damages - For bodily injuries - Non-pecuniary damages for pain and suffering, shock, discomfort, loss of amenities and shortened life expectation - So-called 'functional' approach involving award of non-pecuniary damages only to extent that such damages can fulfil a useful function in providing for physical arrangements to make victim's life more endurable - Such approach consistent with principles of South African law - Function to be served by award of damages relevant in determining what damages to be awarded - Where award of non-pecuniary damages to permanently unconscious plaintiff would not serve any purpose for plaintiff at all, no basis for making award - Nor can such award be made, where plaintiff is a young child, as means of indirectly awarding compensation to parents for their bereavement and suffering.

Headnote : Kopnota

A patient in a hospital is entitled to be treated with due and proper care and skill. The degree of care and skill that is required is that which a reasonable practitioner would ordinarily have exercised in South Africa under similar circumstances. (At 81I/J-82A.) However, a standard of excellence cannot be expected which is beyond the financial resources of the hospital authority. (At 82B/C.) Where a defendant's negligence has resulted in the plaintiff becoming permanently unconscious for the remainder of her life, there is no basis in South African law for awarding her non-pecuniary damages in respect of pain and suffering, shock, discomfort, loss of amenities or shortened expectation of life; for the delictual action for


damages is compensatory, not punitive. For that reason also there is no room for the approach in Germany of making a nominal award to reflect, apparently, society's demand that some retribution be made for the injustice done to the plaintiff. Where the plaintiff is unconscious and all her physical needs have been taken care of, it is not possible to compensate her for her loss. It would be like paying a dead person money in order to compensate him for the loss of his life. (At 95D, 91G/H, 93H and 93I/J-94B.) There is no basis for accepting in South African law the distinction drawn in English law between a subjective and an objective element in the loss of amenities of life, a distinction which owes its existence to the Law Reform (Miscellaneous Provisions) Act of 1934 which made a claim for loss of expectation of life transmissible to a deceased's estate. As such a claim is not transmissible in South Africa the occasion for such distinction does not arise and, without such need, there is no logical basis for the drawing of such a distinction. (At 94D/E and 94E-F.) Consistent with the principles of South African law is the so-called 'functional' approach which involves the award of non-pecuniary damages only to the extent that such damages can fulfil a useful function in making up for what has been lost in the sense of providing for physical arrangements which can make the victim's life more endurable. That the function to be served by an award of damages is a relevant consideration in determining what damages should be awarded was accepted by the Appellate Division in Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A). (At 95B/C-C, 92H/I-I and 93E/F.) Where an award of non-pecuniary damages to the unconscious plaintiff will not serve any purpose for the plaintiff at all, whether useful or otherwise, there is no basis for making any award. (At 95B/C-C, paraphrased.) Nor can the Court make such an award where the plaintiff is a young child as a means of indirectly awarding compensation to its parents for their bereavement and suffering. (At 94I/J.) The plaintiff was the father of a baby of 16 weeks who was a patient in the paediatric tracheostomy unit of the T hospital where she sustained irreversible brain damage

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SCOTT J as a result of the displacement of a tracheostomy tube on which she was dependent for ventilation. She was reduced to a vegetative state which would remain for the rest of her life, estimated to be another two to seven years. The plaintiff instituted action in a Provincial Division in his personal capacity and as natural guardian of his daughter for damages on the grounds of negligence of the hospital staff. At the conference held in terms of Rule 37, the parties agreed that, in the event of the defendant being found liable, he was to be directed to provide through the hospital all future medical and hospital care needed for the child until her death. The child was unable to see or to swallow; had no awareness of environmental stimuli or pain nor any apparent awareness of herself. She was in every respect a 'cabbage' case. Held, on the facts, that the hospital staff had been negligent in failing to replace the displaced tracheostomy tube without undue delay (at 82I/J-83G, summarised) and that plaintiff was entitled to the order directing defendant to care for the child as agreed at the Rule 37 conference (at 83G-H). Held, further, that as the child would be in a permanent vegetative state until she died, which she would probably do within a matter of a few years, it would be of no consequence to her what amount, if any, was awarded to her in respect of non-pecuniary damages; she would never know of such award and would receive no benefit from it whether knowingly or unknowlingly (at 84E-F); that, accordingly, the plaintiff was not entitled to an award of non-pecuniary damages (at 95D). Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484 (W) and Reyneke v Mutual &


Federal Insurance Co Ltd (1991 WLD) reported Corbett and Honey The Quantum of Damages vol IV at A4-65 considered and not followed. The following decided cases were referred to in the judgment of the Court: Andrews v Grand and Toy Alberta Ltd (1978) 83 DLR (3d) 452 (SCC)

Arnold v Teno (1978) 83 DLR 3d 609 (SCC)

Benham v Gambling [1941] 1 All ER 7 (HL)

Croke (a minor) and Another v Wiseman and Others [1981] 3 All ER 852 (CA)

Dickinson v Galante 1949 (3) SA 1034 (SR)

Dube v Administrator, Transvaal 1963 (4) SA 260 (W)

Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484 (W)

Goldie v City Council of Johannesburg 1948 (2) SA 913 (W)

Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 (2) SA 944 (C)

Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 All ER 332 (CA)

Lim Poh Choo v Camden and Islington Area Health Authority [1979] 2 All ER 910 (HL)

Marine & Trade Insurance Co Ltd v Katz NO 1979 (4) SA 961 (A)

Queen, The v Jennings (1966) 57 DLR (2nd) 644 (SCC)

Reyneke v Mutual & Federal Insurance Co Ltd (1991 WLD) Corbett & Honey The Quantum of Damages vol IV at A4-65

Roberts NO v Northern Assurance Co Ltd 1964 (4) SA 531 (D)

Sigournay v Gillbanks 1960 (2) SA 552 (A)

Skelton v Collins (1966) 115 CLR 94 (HC)

Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A)

Thornton v S Dist No 57 Bd of S Trustees (1978) 83 DLR (3d) 480 (SCC)

West (H) & Son Ltd and Another v Shephard [1963] 2 All ER 625 (HL)

Wise v Kaye and Another [1962] 1 All ER 257 (CA)

Case Information

Civil trial in an action for damages. The facts appear from the reasons for judgment. J C Swanepoel for the plaintiff. K Alexander for the defendant. Cur adv vult. Postea (February 9). Judgment

SCOTT J: The plaintiff sues for damages both in his personal capacity and in his capacity as father and natural guardian of his minor daughter,

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SCOTT J Lee-Ann. The action is a sequel to a tragic incident which occurred at the Tygerberg Hospital on 21 October 1991, when Lee-Ann suffered severe cerebral hypoxia following


the displacement of a tracheostomy tube on which she was dependent for ventilation. At the time she was barely 16 weeks old. As a result of irreversible brain damage she is now in what is described as a permanent vegetative state. Although her brainstem function is sufficient to maintain adequate ventilation and circulation she has no intellectual function. She has no awareness of environmental stimuli and no apparent awareness of herself. There is no hope of recovery and she will in all probability die within the next few years. Two questions require determination. The first is whether the mishap was attributable to the negligence of any of the members of the hospital staff who were involved in the care of Lee-Ann at the relevant time. The second, which arises only if the answer to the first is in the affirmative, is the quantum of damages to which the plaintiff is entitled. It is common cause that at all relevant times the members of the hospital staff were acting in the course and scope of their employment with the defendant. Lee-Ann was born on 26 June 1991. Shortly after her birth she was observed to have a respiratory problem and she was immediately intubated with an endotracheal tube. Subsequent and more detailed examination revealed swelling of the vocal chords and the supraglottis. After 16 days there was no improvement and on 12 July 1991 a tracheostomy was performed. It is common cause that the procedure was mandatory at that stage. It involved establishing a portal in the trachea with the insertion of a neonatal tracheostomy tube. The object, of course, was to create an airway below the larynx and so bypass the obstruction in the larynx. The tube is made of a plastic material. The portion which actually enters the trachea is 30 mm in length, slightly curved and flexible. The external part of the tube has a flange with islets on either side, through which a tape is passed and tied around the patient's neck. The tension (or tightness) of the tape around the patient's neck is of vital importance to ensure that the tube remains in position. One of the grounds of negligence relied upon by the plaintiff is that the tension of the tape in the present case was inadequate and I shall deal with this aspect of the matter in due course. Following the tracheostomy, Lee-Ann was first placed in the neonatal intensive care unit for a few days and thereafter, on 16 July 1991, moved to the paediatric tracheostomy unit which, as I shall explain, is a high care unit as opposed to an intensive care unit. Upon examination on 20 August 1991 it was found that the swelling had subsided but that she had an infantile, omega-shaped, epiglottis which at that stage remained non-functional. She was, therefore, still wholly dependent upon the tracheostomy tube for ventilation, but the prognosis was a good one. Before turning to the events of Monday morning, 21 October 1991, it is necessary to describe briefly the tracheostomy unit in which Lee-Ann was a patient and the procedure followed with regard to the care of patients in that unit. The unit is situated on the ninth floor of the hospital and comprises two interleading rooms each accommodating five patients. The rooms, which are numbered 13 and 14, respectively, each have a door into

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SCOTT J the passage. The dividing wall ends before it reaches the passage wall so as to permit egress from the one room to the other without having to go out into the passage. A part of this open area is taken up with a desk which is so situated that anyone sitting at it is able to see into both rooms. Younger children, who are more vulnerable, are accommodated in room 13, while older children are kept in room 14. One of the consequences of a tracheostomy is to render the patient incapable of crying. As crying is the typical means by which a young child in distress will attract attention, the disability from a nursing point of view is a serious one. Older children with greater muscle power


are more easily able by other means to attract attention than very young children. For this reason, it is generally accepted that the younger the child the more vulnerable it is to the consequences of an accidental decannulation. Partly, at least, for this reason new nurses begin in room 14 before progressing to room 13. As I have said, Lee-Ann was only 16 weeks old when the accident occurred. Because of her tender age she was not only a patient in room 13 but also occupied the bed closest to the desk which, it was common cause, is the prime position in the ward. The unit provides a 24-hour per day nursing care. The complement for the day shift, that is to say, from 7 am to 7 pm, is two staff nurses and two nursing assistants with an overseeing sister. The complement for the night shift is the same, save that the overseeing sister also covers the medical ward on the same floor of the hospital. In practice, there are two nurses allocated to each room for 24 hours per day. The one would ordinarily be a staff nurse, having undergone a two-year training course in general nursing, and the other an assistant nurse who would have undergone a one-year training course. All the nurses working in the unit are, however, specifically allocated to the unit and are trained to care for paediatric tracheostomy patients. In addition to a specialist team which serves the unit there is also a 24-hour medical cover, that is to say a doctor on call on the floor. The unit is similar to an intensive care unit in the sense that the patients require a degree of specialised care but unlike an intensive care unit in that they are not attached to specialised monitoring equipment. Dr Gie, who is the head of the unit, explained that although two nurses are allocated to each room on a 24-hour basis, it frequently happens that only one of them is present. This is because the other will, for example, on occasions have to collect food bottles from the kitchen or take a child to one or other of the therapy wards, or will take a lunch or tea break. This was also the evidence of the nurses. Dr Gie explained, however, that they attempted to have two nurses in each room for as much of the time as possible. He also agreed that where one nurse from each of the two rooms had to leave for some reason or other, it was obviously desirable that in such event the overseeing sister be present in the unit. The duties of the nurses in the unit include various specialist tasks. Each patient, for example, has to have its trachea cleared of mucous matter on a regular basis by means of a suctioning process. Similarly, the tracheostomy site of each patient has to be regularly cleaned. The latter procedure involves drawing the flange of the tube slightly away from the neck of the patient in order to gain access to the skin underneath. A

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SCOTT J number of nurses attached to the unit gave evidence. They all said that it was standard practice to check the tension of the tape holding the tracheostomy tube in place whenever anything was done to the patient, whether it be the clearing of the trachea, the cleaning of the tracheostomy site or anything else. This, they said, was effected, first by ensuring that nothing larger than a little finger could be inserted between the tape and the back of the patient's neck and, secondly, by drawing the flange of the tube away from the neck anteriorly to ensure that there was not too much 'play'. I mention, here, that many of the nurses were unable to explain why it should be necessary to constantly check the tension of the tapes, but that they were all very conscious of the need for the tension to be correct. Indeed, Dr Gie explained that provided the knot tying the two ends together does not slip, the tension would not vary. He said that every Thursday the tracheostomy tube of every patient in the unit was changed and unless the knot came undone the tension of the tape would accordingly remain constant. Nonetheless, he explained that the unit was run in such a way that, as a matter of procedure, the nurses


were required constantly to monitor the tension of the tapes. I return to the accident and the events which preceded it. On Thursday, 17 October 1991, Lee-Ann's tracheostomy tube was changed by Dr Heyns, who is a medical officer attached to the unit. He was assisted by staff nurse Humphries and nursing assistant Jansen. All three gave evidence and testified that they were satisfied that the tension of the tape was correct. Other nurses who cared for Lee-Ann between Thursday and Monday morning also testified that on various occasions they had monitored the tension of the tape and found it to be adequate. The two nurses on duty in room 13 on Sunday night, that is to say from 7 pm on Sunday, 20 October, to 7 am on Monday, 21 October, were nurse Pieterse and nurse Manel. Neither observed anything untoward in the condition of Lee-Ann. The nurses' Continuous Report records that at 5.20 am nurse Pieterse cleared Lee-Ann's trachea by means of the suctioning process and also cleaned the tracheostomy site. It records also that at 6 am the suctioning procedure was repeated. This was confirmed by nurse Pieterse who said that she had found all to be well with the patient. At about 6.45 am nurse Pieterse went to see one of the matrons in the hospital about study leave she wished to take, leaving nurse Manel alone in Room 13. She testified that Lee-Ann was at that stage peaceful and clearly nothing was amiss. This was confirmed by nurse Manel. The latter testified that when the day nurses had not arrived by approximately 6.55 am she did a ward round on her own, checking the tension of each patient's tracheostomy tape. The usual procedure was to do the round with the new nurse, but as the latter had not yet arrived, she did the round on her own. At about the same time, staff nurse Bezuidenhout and senior nursing assistant Jansen arrived at the unit. Both were scheduled to do the day shift in room 13 but because the day nurses scheduled for room 14 had not yet arrived and were late, nurse Bezuidenhout took over in room 14 and nurse Jansen took over in room 13. Nurse Bezuidenhout explained that it was not unusual for both night nurses on duty in any of the rooms to leave as soon as the first of two day nurses arrived and that it was not

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SCOTT J considered unacceptable for one nurse to hold the fort in a room until her colleague arrived shortly thereafter. Nurse Manel testified that when nurse Jansen arrived she reported to the latter that all was well and then left. Before doing so, she observed, she said, that all the patients were awake and that there were no problems. This was confirmed by nurse Jansen. She testified that she stood in the middle of the room and observed all the patients. It was then shortly before 7 am. The children were clamouring for her attention. One child in particular, Charlton, who was in the cot diagonally opposite Lee-Ann, attempted to climb out of his cot. Nurse Jansen said she walked to the cot and lifted him up. The room is relatively small, being 71/2 by 61/2 meters and she had to take only a few steps to get to the cot. After picking up Charlton she turned around and looked back in the direction of Lee-Ann's cot. It was then that she observed that Lee-Ann's tracheostomy tube was displaced and to the left of the opening in the child's neck. She immediately put Charlton down on the floor and rushed to Lee-Ann. The latter was already limp and her colour was pale with indications of cyanosis. Nurse Jansen said she had observed no earlier signs of restlessness or distress. She said she immediately attempted to replace the tracheostomy tube. In the meantime, and while she was crossing the floor on her way to Lee-Ann's cot, she had screamed to nurse Bezuidenhout next door. This was confirmed by nurse Bezuidenhout, who testified that on hearing the scream she had immediately run into room 13. There, she observed nurse Jansen attempting to replace the


tracheostomy tube. When she saw Lee-Ann's colour, which she described as grey, she realised at once the gravity of the situation. Without pausing she pushed the emergency trolley towards nurse Jansen and rushed off down the corridor to summon the doctor on call. She returned with Dr Ravenscroft who took over from nurse Jansen. By this time other nurses had arrived or were arriving at the ward. Nurse Bezuidenhout estimated that it took her a minute, or even less, to return with Dr Ravenscroft. In the meantime, nurse Jansen had been unsuccessful in reinserting the tracheostomy tube. She had at first attempted to put back the tube without cutting the tape. When this proved impossible she cut the tape and tried again but still without success. She was unable to explain why she had been unable to replace the tube. Because of the mobile nature of the tissue around the neck, recannulation may involve more than simply putting the tracheostomy tube back into the surgical opening in the skin. It may also be necessary to move the tube around to find the opening in the muscle of the trachea. Where decannulation occurs within a week of the tracheostomy, recannulation can be very difficult to achieve. Once, however, the tube has been in place for a longer period, the formation of epithelial tissue results in the establishment of something in the nature of a permanent cannula or tube so that replacement of the tracheostomy tube ought to present no difficulty. In the present case, of course, the tracheostomy had been performed more than three months previously. When Dr Ravenscroft arrived in the ward she took over from nurse Jansen and immediately, without any difficulty, replaced the tracheostomy tube and commenced the standard resuscitation procedure. At

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SCOTT J that stage there was no spontaneous breathing, no heartbeat and the patient's pupils were dilated. Something like 15-20 minutes elapsed before a spontaneous heartbeat was obtained and about 30 minutes elapsed before the patient began spontaneous breathing, that is to say without being artificially ventilated. The duration of the cerebral hypoxia was, however, such as to result in irreversible brain damage. After an initial prolonged coma, Lee-Ann passed into her present permanent vegetative state from which she will never recover. There was much debate, both in evidence and in argument, as to the adequacy of the tension of the tape which had held Lee-Ann's tracheostomy tube in place. Dr Ramages, an ear, nose and throat specialist, who gave evidence on behalf of the plaintiff, expressed the view that if the tension of a tracheostomy tape is adequate the tube will not be displaced other than by the application of some external force. In other words, it would not be displaced by the ordinary active movements of the child or by its passive movements, that is to say movements resulting from the child being handled by the nurses, or by the child coughing. He explained, and it was common cause, that at four months Lee-Ann would have lost the 'reflex grasp' which very young babies have but would not yet have acquired the co-ordination required to grasp and dislodge the tube. He argued that in the absence of evidence of some other external force, and there was none, it followed, by a process of elimination, that because decannulation did in fact occur, the tension of the tape must have been inadequate. Dr Gie strongly contested the correctness of this view. He said that while adequate tension of the tape would prevent decannulation from occurring in consequence of anterior movement of the tracheostomy tube, it was no safeguard against decannulation occurring in consequence of a rotational force being applied to the external portion of the tube. This, he said, was due to the short length of the tube inserted into the trachea, viz 30 mm, and the flexibility of the tube which permitted it to kink when subjected to a


rotational force. Such a rotational force, he contended, could occur even in the absence of what Dr Ramages described as the application of an external force. Dr Gie readily conceded that the weight of the semi-transparent ripple tubing which connects the humidifying apparatus with the plastic mask which is fitted loosely over the patient's tracheostomy tube, is so little that the tube would not ordinarily exert any rotational force on the mask and hence on the tracheostomy tube beneath it. But he pointed out that in the event of water collecting in the tube, which occurs as a result of condensation, or in the event of the tube being trapped by a leg or an arm or even bed clothing, a rotational force could be exerted on the tracheostomy tube of sufficient magnitude as either to displace it entirely or, if not, at least to cause it to be placed in a position which was less than ideal. Dr Gie also disagreed with Dr Ramages as to whether a tracheostomy tube adequately taped could be 'coughed out' or not. He emphasised that the neonatal tube had an internal diameter of only 3 mm and that in the event of the resistance to the exhalation of air associated with a cough being increased in consequence of the presence of tenacious mucus in

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SCOTT J the tube, a cough, although it would have to be a hefty one, could cause the tube to be displaced. Indeed, he testified that he had personally experienced this a number of times. He explained that the tracheostomy tube was not simply coughed out in an anterior movement, which would not be possible if the tension on the tube were adequate. Instead, it was dislodged in a rotating movement with the tracheostomy tube kinking in the process. Another possibility suggested by Dr Gie as to how the decannulation could have occurred was that the child had flexed her neck so as to exert pressure on the mask with her chin and had then rotated her neck, dislodging the tube in the process. Althrough Dr Gie was unable to specify the precise mechanism by which decannulation had occurred in the present case, he nonetheless resisted the contention that in the absence of some 'external' force the fact that decannulation occurred compelled the inference that the tension of the tape had been inadequate. He suggested that there may even have been a variety of contributing factors such as, for example, drag on the ripple tubing causing the position of the tracheostomy tube to become less than ideal, followed by a cough. For the reasons I shall give it is, however, unnecessary, I think, to have to resolve this difference between Dr Ramages and Dr Gie. Both doctors were agreed that it was not an easy matter to assess properly the correct tension of the tape in the case of very young children. Dr Ramages candidly admitted having himself erred in the past in his assessment of the tension of the tape and that his 'error of judgment', as he called it, had resulted in decannulation, fortunately without serious consequences. The object was to strike a balance between having the tape so tight that it cut into the patient's neck and interfered with her circulation and so loose that it did not keep the tracheostomy tube in place. As Dr Gie explained, the permissible margin for error is minimal. The 'little finger test' would result in it being possible to draw the flange of the tube some 11/2 cm away from the anterior of the neck. In the case of an adult tracheostomy tube, which is 9 cm long, there is a safety margin of some 71/2 cm. In the case of a neonatal tracheostomy tube, however, the margin would only be 11/2 cm. A neonatal tube is also very flexible and is liable to kink. This renders it much more likely to be displaced by a rotational force than in the case of an adult tracheostomy tube which is virtually rigid. What all this means is that, regardless of whether Dr Ramages or Dr Gie is correct, there is always a very real likelihood of an


accidental decannulation occurring. This, I think, is clear. Dr Gie referred to the literature to demonstrate the relatively high incidence of accidental decannulations in tracheostomy units in countries like the United States of America. He estimated that in his unit there were approximately 6-8 accidental decannulations per year. Unless in each case the tube is promptly replaced the consequences of decannulation, as in the present case, can be tragic. The question that arises is whether the failure on the part of the hospital staff promptly to replace the tracheostomy tube amounted to negligence in the circumstances. It is trite law that a patient in a hospital is entitled to be treated with due and proper care and skill. The degree of care and skill that is required is that which a reasonable practitioner

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SCOTT J would ordinarily have exercised in South Africa under similar circumstances (see Dube v Administrator, Transvaal 1963 (4) SA 260 (W) ). The need for particular care and vigilance in the case of paediatric tracheostomy patients is obvious. Not only is the possibility of accidental decannulation readily foreseeable, but unless immediately remedied the consequences are fatal. Indeed, this need for care and vigilance is reflected in the staff allocated to the tracheostomy unit. No doubt there are other similar units elsewhere in the world where the staff to patient ratio is higher. But a standard of excellence cannot be expected which is beyond the financial resources of the hospital authority. I accept as reasonable therefore a staff allocation of two nurses to each room of the unit with an overseeing sister during the day and an overseeing sister shared with other wards at night. It must also be accepted, I think, that one of the two nurses in each room will from time to time be absent in the circumstances which I have previously described. At the time of the accident there were, of course, only two nurses on duty in the unit, nurse Bezuidenhout in room 14 and nurse Jansen, in room 13. The day sister had not yet arrived and the night sister who covered the tracheostomy unit as well as the medical ward had by that time already left, after handing over to the sister in charge of the medical ward on the same floor. Such a state of affairs, that is to say with only two nurses in the unit, was acknowledged by Dr Gie in evidence as being undesirable. As I have previously said, the younger and higher risk patients were accommodated in room 13. Of these the youngest and the most vulnerable was Lee-Ann, hence her prime position in the room close to the nurses' desk. Nurse Jansen, who was left alone in room 13, was well aware of the risk of accidental decannulation and the need for vigilance. In fairness to her, so were the other members of staff who were prepared to walk off leaving her to hold the fort single-handed. It was also probably a bad time of day to be left alone. The patients had all recently woken up and were clamouring for attention. But this was all the more reason to keep them under careful observation. In other words, in the circumstances in which she found herself, nurse Jansen, in my view, was obliged to ensure that she did not devote her attention solely to one child for too long a period. It was her duty, I think, constantly to be aware of how each child was faring. Having regard to the relatively small size of the room all that would have been required was a regular glance at each child. The impression given by nurse Jansen in her evidence was that her attention was devoted to the child attempting to climb out of its cot only for a few seconds. She said that while standing near the middle of the room where she could keep an eye on all five patients she saw the one child climbing out of its cot. She hurried to him and picked him up. She then looked back in the direction of Lee-Ann and saw that the tracheostomy tube was not in place. By that time, however, Lee-Ann was already limp. In other words,


she was unconscious. The doctors who gave evidence were agreed that on losing her tracheostomy tube Lee-Ann would in all probability have thrashed around in obvious distress or, as Dr Thomson, the paediatric neurologist, put it, she would have been fighting for her life. On the assumption that her oxygen supply was

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SCOTT J totally cut off, which would appear to have been the case, it would have taken in the region of about a minute for Lee-Ann to lose consciousness. All this, however, was missed by nurse Jansen. By the time she became aware of the problem Lee-Ann was already unconscious. She clearly devoted her sole attention to the child climbing out of his cot for a longer period than she subsequently thought. In doing so she failed, in my view, to exercise the care towards Lee-Ann which in all the circumstances was required of her. But her troubles were not over. Whether she panicked or not one does not know. Inexplicably, she was unable to replace the tracheostomy tube. She could offer no explanation for this, nor does any reason present itself. Dr Ravenscroft, when she arrived, had no difficulty. In her words, she just put the tube in. But this meant that another valuable minute was lost before ventilation could be recommenced. There can be no doubt, I think, that the skill required of a nurse in the position of nurse Jansen, that is to say one of only two nurses present in the unit, must include the ability, in the absence of some particular problem, to replace a tracheostomy tube in an emergency. As I have said, there is nothing to suggest that there was any particular problem with regard to the replacing of the tube, and in failing successfully to do so, nurse Jansen, in my judgment, failed to exercise the skill expected of a reasonable nurse in her position. The situation was, of course, exacerbated by the absence in the unit of a sister or even a third nurse. Had the sister or another nurse been present she could have taken over from nurse Jansen when the latter found that she could not replace the tracheostomy tube. Nurse Bezuidenhout cannot be blamed. When she came into room 13 she observed nurse Jansen attending to the matter of replacing the tracheostomy tube. Lee-Ann's colour told her all. In running down the passage for help she probably did the right thing. The fact that she had to leave the patients in room 14 unattended serves, however, merely to highlight the insufficiency of the staff on duty at the time. In my view, therefore, the hospital staff were negligent in failing to exercise proper care and skill in relation to Lee-Ann. I turn now to the question of damages. The parties agreed at the conference held in terms of Rule 37 that, in the event of the defendant being found liable, he was to be directed to provide through the Tygerberg Hospital all future medical and hospital care for Lee-Ann until her death. The plaintiff is accordingly entitled to such an order. The remaining question in issue relates to general damages. In this regard the plaintiff claims in his representative capacity the sum of R200 000 for pain, suffering, shock, discomfort and loss of amenities of life. I have previously referred briefly to Lee-Ann's condition. It is necessary to say a little more about it. She lies in what Dr Thomson described as a decerebrate posture. Her neck is extended. Her arms are extended and internally rotated with her fists clenched. She develops tremulous movements of her limbs when stimulated during examination. There is no cortical function. Her eyes are open but she is cortically blind. Her gaze is dysconjugate, that is to say, her eyes are in a squinting position. She is unable to swallow and she is fed by means of a

1995 (4) SA p84


SCOTT J naso-gastric tube. She has no awareness of environmental stimuli nor any apparent awareness of herself. She has no awareness of pain. She continues to be ventilated adequately with a tracheostomy tube in situ. She is in every respect a 'cabbage' case. There was some difference of opinion as to her present life expectancy. Dr Thomson thought she could live for another seven years. This view was based on his general experience and in particular on the fact that Lee-Ann had already survived for three years. Dr Gie, on the other hand, was of the view that even if Lee-Ann were to continue to receive antibiotic and other active treatment she would not survive for more than approximately another two years. In support of this view he emphasised that subsequent to the accident Lee-Ann had already experienced something in excess of 10 bouts of pneumonia and on one occasion had had to be artificially ventilated for as long a period as 14 days. He explained that all this resulted in progressive lung damage which rendered her body less able to cope with the following bout of pneumonia and that it was inevitable that she would die of pulmonary disease. It seems to me that Dr Gie, having a special interest in paediatric pulmonology, and the person with particular knowledge of Lee-Ann's clinical history, is perhaps in a better position than Dr Thomson to make an accurate assessment of Lee-Ann's life expectancy. Ultimately, the difference between the doctors is not of great import. Both agree that Lee-Ann will remain in a permanent vegetative state until she dies and the latter event will probably occur within a matter of a few years. It follows that it is of no consequence to Lee-Ann what amount, if any, is awarded to her in respect of non-pecuniary damages. Not only will she never know of the award, she will receive no benefit from it whether knowingly or unknowingly. As counsel for the defendant poignantly put it, 'one cannot even buy her a teddy bear'. Indeed, there is something unreal in attempting to compensate her. It is like trying to compensate a dead person with money. Had she not been resuscitated and had she died, her claim for non-pecuniary damages would have died with her. It would not have passed to her estate (see Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 (2) SA 944 (C) ). But in truth she is more dead than alive. Her body continues to function, but her mind is gone. Her parents seldom visit her. Their failure to do otherwise is understandable. There is nothing to visit. Lee-Ann merely exists, lying in hospital waiting for her tenuous link with this world to be finally severed. Mrs Alexander, who appeared for the defendant, submitted that as no award of non-pecunary damages would serve any purpose, it would be proper in all the circumstances for no award to be made under this head. The problem of how to compensate persons in such a condition (frequently referred to in the cases as the 'unconscious' plaintiff has been the subject of much debate and difference of judicial opinion. The question was considered in England by the Court of Appeal in Wise v Kaye and Another [1962] 1 All ER 257 (CA) and by the House of Lords in the two subsequent decisions of H West & Son Ltd and Another v Shephard [1963] 2 All ER 625 (HL) and Lim Poh Choo v Camden and Islington Area Health Authority [1979] 2 All ER 910 (HL). As far as non-pecuniary damages are concerned, that is to say damages for pain

1995 (4) SA p85

SCOTT J and suffering and loss of amenities of life, the position in England as reflected in these cases, can, I think, be summed up as follows. Since an unconscious person is spared pain and suffering, he or she will not qualify for damages under this head. Similarly, because he or she is spared the anguish which may result from the knowledge of what


in life has been lost or from the knowledge that life has been shortened, he or she will also not be entitled to damages in respect of this subjective element of the loss of amenities of life. But the fact of unconsciousness does not eliminate the actuality of the deprivation of the ordinary amenities of life and for this objective element of the loss, he or she is entitled to substantive damages. The approach to the question of pain and suffering and the subjective element of the loss of amenities of life presents no difficulty. Since an unconscious plaintiff suffers no pain and has no feelings there is ipso facto no 'loss' to be compensated. I pause to mention that this approach is consistent with that adopted in Sigournay v Gillbanks 1960 (2) SA 552 (A) . The difficulty, however, lies with the so-called objective element of the loss. It is inherent in the speech of Lord Scarman in the Lim Poh Choo case and in the majority speeches in the H West & Son case that the award of non-pecuniary damages in respect of the actuality of the loss is to be determined without regard to the fact of the plaintiff's unconsciousness and without regard to the use to which the money so awarded may thereafter be put. It is, furthermore, fundamental to the approach adopted in the majority speeches that it is the objective element of the loss which is the greater, and not the subjective element, so that the award for the actuality of the deprivation of amenities of life must be substantial, notwithstanding the unconsciousness of the plaintiff. The conclusion in these three English cases has not been without dissent. Indeed, Lord Scarman in the Lim Poh Choo case spoke of the 'formidable logic and good sense of the minority opinions expressed in Wise v Kaye and H West & Son Ltd v Shephard', and of Lord Denning's 'powerful dissent' in the Court of Appeal in the Lim Poh Choo case. A complicating factor has been the position in England with regard to the claim for loss of expectation of life. Such a claim is by statute transmissible to the deceased's estate so that it is possible for damages to be awarded against a tortfeasor where the victim could not enjoy the proceeds of the judgment. Prior to 1941 the measure of damages to be awarded in such cases was so vague that in practice this head of damage got out of hand. In that year the House of Lords in Benham v Gambling [1941] 1 All ER 7 (HL) decided that the damages in such cases had to be diminished and that only very moderate amounts would be allowable. Viscount Simon LC referred to the extreme difficulty in putting a money value on a prospective balance of future happiness and ultimately awarded a nominal sum of £400. In the H West & Son case both Lord Reid and Lord Devlin in their dissenting speeches referred to Benham v Gambling and relied on this case, at least partly, to justify their conclusion that far greater weight should be attached to the subjective element of the loss rather than the objective element, so that in the case of an unconscious plaintiff only a moderate figure should be awarded in respect of his objective loss of amenities of life. A similar approach was

1995 (4) SA p86

SCOTT J adopted by Diplock LJ in his dissenting judgment in Wise v Kaye and by at least three Judges in the Australian High Court case of Skelton v Collins (1966) 115 CLR 94 to which I shall refer in more detail later. A fact which was also of concern to Lord Reid and to Lord Devlin was the inability of the plaintiff to derive any benefit from the award, although neither considered this to be a decisive consideration. Lord Reid said, at 629: 'To my mind there is something unreal in saying that a man who knows and feels nothing should get the

same as a man who has to l ive with and put up with his disabilities, merely because they have sustained comparable physical injuries. It is no more possible to compensate an unconscious man than it is to compensate a dead man.'


And further: 'Damages are awarded not to punish the wrongdoer but to compensate the person injured, and a dead

man cannot be compensated. Loss to his estate can be made good, and we can give some compensation to those whom he leaves behind. Perhaps we should do more for them - but not by inflating the claim of the dead man's executor, for then the money may go to undeserving distant relatives or residuary legatees or even to the Treasury if he dies intestate and without heirs.'

Lord Denning in his dissenting judgment in the Lim Poh Choo v Camden and Islington Area Health Authority in the Court of Appeal ([1979] 1 All ER 332) was far more forthright. He said at 341a-c: 'One thing is beyond doubt; fair compensation must mean that she (the unconscious plaintiff) is to be

kept in as much comfort and tended with as much care as compassion for her so rightfully demands; and that she should not want for anything that money can buy. But I see no justification in law or in morals awarding to her large sums of money in addition to those needed to keep her in comfort. Such extra sums will avail her nothing. She herself can make no use of them. All that will happen to them is that they will be accumulated during her lifetime at high interest rates of which 80% or more will go to the Revenue. Invested well the capital will be worth more and more. She will be unable to dispose of any of it by will, since she has not the mental capacity to make a will. On her death, all will go to her nearest relatives, or if she has none then, I suppose to the Crown as bona vacantia; and the Crown will not know what to do with the money. . .. It was for reasons such as these that Lord Pearson's Commission recommended that non-pecuniary damages should no longer be recoverable for permanent unconsciousness. Similarly reasoning seems to me to apply to permanent insensibility.'

In the House of Lords no attempt was made in the Lim Poh Choo case to deal with the reasoning of the minority opinions in H West & Son Ltd v Shephard or with that of Lord Denning in his dissent in the Court of Appeal. Lord Scarman merely pointed out that since 1963 (the year H West & Son Ltd v Shephard was decided) settlements had proceeded on the basis that the rule first adopted in Wise v Kaye was correct and that the reversal of the decision in H West & Son v Shephard 'would cause widespread injustice, unless it were to be part and parcel of a comprehensive reform of the

law'.

He accordingly concluded (at 919) that if the law is to be changed, 'it should be done not judicially but legislatively within the context of a comprehensive enactment dealing

with all aspects of damages for personal injury'.

1995 (4) SA p87

SCOTT J Although his Lordship was careful not to say so expressly, his comments do, I think, contain an implicit recognition of the need to reappraise the whole basis upon which damages are to be awarded in the case of unconscious plaintiffs. In 1966 the Australian High Court in Skelton v Collins (supra) was called upon to decide the basis upon which non-pecuniary damages were to be awarded to unconscious plaintiffs. The plaintiff in that case was 17 years of age when he was injured. He had not recovered consciousness and never would. At the time of the trial it was thought that he would die within six months. The Court accepted that the plaintiff was not entitled to damages for pain and suffering and the subjective element of the loss of amenities of life, but, contrary to the English approach, held that insofar as the objective element of the loss was concerned, the plaintiff was entitled to some compensation but that such compensation (Menzies J dissenting) should be only a modest sum. The reasoning of Kitto, Taylor and Owen JJ was similar to that of Lords Reid and Devlin in their dissenting speeches in H West & Son Ltd v Shephard (supra). Menzies J, as did the majority in the H West & Son case, regarded the ordinary conventional awards for loss of amenities as being mainly for the objective loss, so that the amount to be awarded for that loss, even where the plaintiff was unconscious, was to be substantial.


Windeyer J went further and examined the underlying basis of a monetary award which is made as compensation for the loss of something which in reality has no monetary value, that is to say, 'the ability to live out life with faculties of mind and body uninjured'. The monetary compensation, he felt, could not be based on an evaluation of a thing lost, and concluded, at 130, that '(i)t must surely be based upon solace for a condition created not upon payment for something taken away'. He elaborated at 131: 'If he (the victim) has been deprived of the ability to do some things that he had enjoyed doing or had

hoped to do, then money may enable him to enjoy other things instead. But the money is not then a recompense for a loss of something having a money value. It is given as some consolation or solace for the distress that is the consequence of a loss on which no monetary value can be put.'

After referring to the finding of the trial Court that an award of non-pecuniary damages could not be used for the advantage of the plaintiff, Windeyer J continued at 133: 'In my view his Honour, having thus held that on the evidence there was not even a chance that the

additional sum could be used for the advantage of the plaintiff, ought not to have awarded it. It could not bring any advantage or consolation to the plaintiff. Consolation presupposes consciousness and some capacity of intellectual appreciation. If money were given to the plaintiff he could never know that he had it. He could not use it or dispose of it. It would simply go to his legal personal representatives on his death. It would be of no more benefit to him personally than sending the defendant to gaol would be. He is not, like Samson Agonistes, aware and able to bemoan his fate "to live a life half dead, a living death". His existence is in very truth a living death. I would therefore decide, if I were free to do so, that the award made by his Honour should be increas ed in respect of the amount he allowed for loss of earning capacity, but that his Honour was in error in allowing the sum of £1 500 for general damages.'

Nonetheless, the learned Judge agreed to be guided by what was said 1995 (4) SA p88

SCOTT J in Benham v Gambling (supra) and to allow a relatively small sum to be awarded to the plaintiff for loss of amenities of life. He did so, however, 'for the sake of conformity' with the majority of his Brethren rather than 'from conviction'. Turning to Canada, the opinion of the majority in H West & Son Ltd v Shephard (supra) was accepted by the Supreme Court in The Queen v Jennings (1966) 57 DLR (2nd) 644 (SCC), being a case in which the plaintiff, a 52-year-old man, was rendered permanently unconscious in a motor accident. Subsequently, however, and in a trilogy of cases (Andrews v Grand and Toy Alberta Ltd (1978) 83 DLR (3d) 452 (SCC); Arnold v Teno (1978) 83 DLR (3d) 609 (SCC) and Thorton v S Dist No 57 Bd of S Trustees (1978) 83 DLR (3d) 480 (SCC), the Canadian Supreme Court, mindful of the extravagant awards made south of the border, adopted what an English commentator (A J Ogus 'Damages for Lost Amenities: For a Foot, a Feeling or a Function?' (1972) 35 Modern Law Review 1) has called the 'functional' approach to non-pecuniary damages. Dickson J, in the Andrews case, explained the functional approach as follows (at 476): (I)t attempts to assess the compensation required to provide the injured person "with reasonable solace

for his misfortune". "Solace" in this sense is taken to mean physical arrangements which can make his life more endurable rather than "solace" in the sense of sympathy. (I)t provides a rationale as to why money is considered compensation for non-pecuniary losses such as loss of amenities, pain and suffering, and loss of expectation of life. Money is awarded because it will serve a useful function in making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way.'

The effect of this approach, the learned Judge said at 477, was '(t)hat large amounts should not be awarded once a person is properly provided for in terms of future

care for his injuries and disabilities'.

None of the three cases constituting the so-called trilogy concerned an unconscious


claimant. Nonetheless, in view of the course taken by the Canadian Supreme Court, it is likely that the Canadian Courts will decline to follow the English view and will refuse non-pecuniary damages where the plaintiff, by reason of his unconsciousness, would be unable to derive any advantage from such an award (see Cooper-Stephenson and Saunders Personal Injury Damages in Canada at 378; G H L Fridman The Law of Torts in Canada vol 1 at 404). To sum up, therefore, there is a strong view in England that the law with regard to the claim of the unconscious plaintiff is in need of review. Reacting, no doubt, to the remark of Lord Scarman in the Lim Poh Choo case quoted above, Lord Denning expressed his dissatisfaction with what appears to be a stalemate situation, as follows: 'The Judges repeatedly say: "The law is unjust, but we can do nothing. It is for Parliament, not for us.

Then Parliament does nothing." It makes me wring my hands with despair. I would say to the Judges: "Ye fearful Saints fresh courage take." '

(Croke (a minor) and Another v Wiseman and Others [1981] 3 All ER 852 (CA) at 856f.) The Australian High Court has refused to follow the

1995 (4) SA p89

SCOTT J English view and in Canada the Supreme Court has adopted the functional approach which is wholly incompatible with the English view. In Germany the position appears to be that, although it is recognised that a permanently unconscious plaintiff is incapable of being compensated as such for his loss of amenities of life, an award, albeit a limited one, is made in recognition of the loss he has suffered and to satisfy the demand of society that there be some retribution for the injustice done to the plaintiff. (See P J Visser's doctoral thesis Kompensasie en Genoegdoening volgens die Aksie weens Pyn en Leed at 78-80; Visser 'Kompensasie en Genoegdoening' (1988) 90 THRHR at 480.) In the Netherlands, however, it would seem that an unconscious plaintiff is regarded as incapable of being compensated for a loss of amenities of life and will not recover damages under this head. (See P J Visser's doctoral thesis supra at 80 n 116.) Turning to South Africa, counsel were able to refer me to only two reported cases involving the compensation of an unconscious plaintiff. The first, Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484 (W) , was a case of a 21-year-old man who had been rendered permanently unconscious in a motor accident. His condition was described as 'vegetative' and he was expected to live for only another six months. In his judgment, Ludorf J referred to Wise v Kaye and Another (supra) and quoted at length from H West & Son Ltd and Another v Shephard (supra). After confessing that he had been influenced by the reasoning of the Law Lords in the latter case, the learned Judge disposed of the problem of the plaintiff's unconsciousness on the simple basis that, as unawareness was not a disqualification for a claim for loss of earnings, it should not be a disqualification for a claim for loss of amenities of life as the latter claim 'has been classified with a claim for patrimonial loss'. With respect to the learned Judge I do not think that it follows at all that, simply because awareness is not a requirement for a claim for loss of earnings, it should also not be required for a claim for loss of amenities of life. Although the former has its own peculiar problems in relation to an unconscious plaintiff, and I express no view in this regard, the claim is one which is of a pecuniary nature and is accordingly very different from the latter which, of course, is non-pecuniary. The fact that the latter may have been 'classified' in a particular way can surely not change its true nature. This aspect of the case has been severely criticised. For a summary of some of the criticisms levelled at this judgment see Boberg The Law of Delict vol 1 at 567-9.


General damages were awarded in the sum of R5 000, which amount appears to have been made up of R4 000 in respect of loss of amenities of life and R1 000 in respect of loss of expectation of life. Two aspects require comment. The first is the award in respect of loss of expectation of life. The suffering and anguish experienced by a conscious plaintiff will ordinarily be increased by the prospect of a premature death. Where, however, the plaintiff is unconscious, he is unaware of this. He is spared both pain and the anguish of knowing that his life has been cut short; therefore he has no claim for this subjective element of the loss. This is self-evident and is the position both in England and Australia. In the Gerke case the plaintiff was unconscious and the award must, therefore,

1995 (4) SA p90

SCOTT J have been founded upon the objective fact of the loss of expectation of life. As I have attempted to show, however, the award on this basis has its roots in the English statutory provision in terms of which a claim for loss of expectation of life is transmissible. (As to the origin of the claim, see Wise v Kaye and Another (supra at 260H-261C).) In South Africa, a claim for loss of expectation of life, like the claim for pain and suffering, is not transmissible to the claimant's heirs. There would appear, therefore, to be no justification for the importation from England of this 'rather special head of damages' (per Lord Morris in H West & Son Ltd and Another v Shephard (supra at 632). In support of the award under this head, Ludorf J also referred to Goldie v City Council of Johannesburg 1948 (2) SA 913 (W) and Dickinson v Galante 1949 (3) SA 1034 (SR) . It appears from the passages quoted that in the former case counsel for the plaintiff disavowed any specific claim for shortened expectation of life along the lines of that accepted in Benham v Gambling (supra), and in the latter case Thomas J rejected the notion of a claim for diminished expectation of life per se. In the third case cited, Roberts NO v Northern Assurance Co Ltd 1964 (4) SA 531 (D) , Burne J appears to have accepted the existence of a claim for the objective loss of life expectation on the basis of what was said by Lord Morris in the H West & Son case without further ado. (For a further criticism of this aspect of the Gerke case, see Luntz 'Damages in cases of Brain Injury - Some Developments' (1967) 84 SALJ at 6.) The other aspect of the award which requires comment is that Ludorf J appears to have accepted the minority view in the H West & Son case without alluding to that fact. At 494 the learned Judge expressed the view that 'any realisation which the plaintiff has, or did have or will have, of what he has lost . . . is the true

compensable suffering (as distinct from pain) which will carry far heavier damages than the somewhat artificial and notional award referred to in (a) above',

that is to say, 'something (which) falls to be awarded for what has been called loss of happiness even in a case where

the victim has been reduced to a state in which he has never realised and will never realise that he has suffered this loss'.

Again, when discussing the amount to be awarded, he said at 496: 'In regard to the loss of the amenities of life I agree with Mr Rathouse that awareness of such loss is the

most important factor in such an assessment, in the proper case.'

The majority view in the H West & Son case was, of course, that it is the objective element of the loss which is the greater and not the subjective element. The other reported case to which I was referred involving the claim of an unconscious plaintiff for non-pecuniary damages was Reyneke v Mutual & Federal Insurance Co Ltd (a decision of Claasen AJ in the Witwatersrand Local Division in 1991 and reported in


Corbett and Honey The Quantum of Damages vol IV at A4-65). This case concerned a 16-year-old girl who was left in a persistent vegetative state after being knocked down by a motor car. At the time of the trial her life expectancy

1995 (4) SA p91

SCOTT J was estimated at 71/2 years and it was accepted that she would not recover consciousness. On the strength of the English cases, Claasen AJ drew a distinction between the subjective element of the loss, that is to say, pain, suffering, mental anguish, fear, anxiety, etc, on the one hand, and on the other, the objective element of the loss, that is to say, loss of amenities of life, reduced expectation of life, disfigurement etc. As far as the latter element is concerned, he felt that in view of the decision in Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) (to which I shall refer later) some allowance had to be made for the unlikelihood of the claimant being able to make use of any amount so awarded and to this extent departed from the decision in H West & Son v Shephard in which it was held by the majority that the use to which any award could be put was irrelevant. The learned Judge concluded that subject to such an allowance an award had to be made in respect of the objective element of the loss (and also the subjective element, notwithstanding the claimant's unconsciousness) and awarded an amount of no less than R50 000 for the objective element of the loss. The learned Judge disposed of the problem of compensating an unconscious patient with an award of non-pecuniary damages in a single paragraph. He said at A4-76: 'The principal criticism levelled at awarding damages to a "cabbage" for pain and suffering and loss of

amenities of life is that money is paid for enjoyment of life to a person who does not know that he had suffered such loss of enjoyment. It is said one is consoling someone with money who does not know that he needs consolation and it is said that consolation presupposes consciousness and some capacity of intellectual appreciation. In my view the fallacy in this argument is that it equates a dead man with an unconscious man. It also implies that it is "cheaper to kill a man than to maim him".'

With respect to the learned Judge, I have difficulty in appreciating the fallacy to which he refers. An unconscious person is as unconsolable as a dead person and to this extent there is a similarity between the two. Indeed this is the objection to awarding non-pecuniary damages to a permanently unconscious person. It is no different from awarding damages to a dead person. As far as it being cheaper to kill a man than to maim him, this is undoubtedly so in the absence of a dependant's claim. But the reason is that the action is compensatory and not punitive. A further justification for the award relied upon by Claasen AJ was that the unconscious plaintiff 'has a right to be visited by her family while still alive' and that an award of general damages could be used to pay the transport costs of her family and friends. The learned Judge considered that '(i)n such instances the money is in fact employed to console her and to alleviate her lot in life, however small'. He felt, accordingly, that '(t)he defendant could not be heard to say "Suzette is not aware of the presence of her family and friends

and therefore I should not be forced to pay any contribution towards the costs of having them at her bedside" '.

An award of non-pecuniary damages could be used by a conscious plaintiff to have her family and friends visit her and in this way the award would provide some consolation for her loss. The use of the award in this manner could therefore be a factor to which a court may have regard when considering the quantum of non-pecuniary damages to be awarded.

1995 (4) SA p92

SCOTT J


See Marine & Trade Insurance Co Ltd v Katz NO 1979 (4) SA 961 (A) at 983B-E. But where the plaintiff is unconscious, neither the award nor the visit can provide any consolation and the award accordingly serves no purpose. I therefore cannot agree with the reasoning of the learned Judge. There may, of course, be a pecuniary claim for such transport costs, but no such claim was made in the present case and it is unnecessary to consider the matter. Finally, I should mention that Claasen AJ awarded the sum of R10 000 in respect of reduced life expectancy. For the reasons given when considering the Gerke case, I consider this award to have been unjustified. In support of her submission that an award of non-pecuniary damages should not be made in the instant case, Mrs Alexander emphasised the fact that by reason of Lee-Ann's vegetative state and total lack of awareness, any award which the Court might make for pain and suffering and loss of amenities of life would serve no purpose and in particular would not serve in any way to compensate her for her loss. Mr Swanepoel, for the plaintiff, relied essentially on the approach adopted in England but conceded that when determining compensation for the objective element of Lee-Ann's loss, some allowance should be made for the fact that the amount awarded could not be usefully employed to ameliorate her condition. There are, I think, two principal objections to what is essentially the English approach, involving, as it does, a notional distinction between a subjective and objective element of the loss of amenities of life and the award of non-pecuniary damages in respect of the objective loss or, as it has been described, the actuality of the loss. As previously indicated, there would appear to be unanimity that an unconscious person is not entitled to damages for pain and suffering or anguish, that is to say the subjective element of the loss of amenities, since he or she suffers no pain and experiences no anguish. The objections to the English approach are the following. First, the award of non-pecuniary damages in respect of the actuality of the loss serves no purpose as the money awarded cannot be used for the benefit of the unconscious plaintiff. Second, it can provide no consolation to an unconscious plaintiff, as consolation presupposes consciousness and some capacity of intellectual appreciation. A conscious person who, by reason of his injuries, is incapable of deriving any advantage from a monetary award can notionally obtain some consolation from the receipt of money and from being able, if he pleases, to give it away. An unconscious person can not even have this consolation. The so-called 'functional' approach involves the award of non-pecuniary damages only to the extent that such damages can fulfil a useful function in making up for what has been lost in the sense of providing for physical arrangements which can make the victim's life more endurable. In Southern Insurance Association Ltd v Bailey NO (supra) it was argued on behalf of the appellant (the defendant) that the functional approach should be adopted in South Africa. Nicholas JA, who delivered the judgment of the Court, referred to the Lim Poh Choo

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SCOTT J case and noted that in England the functional approach had been rejected by the highest Court, but, after a brief review of various dicta in South African cases, stated: 'This Court has never attempted to lay down rules as to the way in which the problem of an award of

general damages should be approached. The accepted approach is the flexible one described in the often quoted statement of Watermeyer JA in Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199:

"The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the Judge's view of what is fair in all the circumstances of the case."


I do not think that we should now adopt a different approach. To do so might result in injustice of the kind referred to in Lord Scarman's speech in the Lim Poh Choo case.

This does not mean, of course, that the function to be served by an award of damages should be excluded from consideration. That is something which may be taken into account together with all the other circumstances.'

It is apparent from the ultimate paragraph of this passage that the Appellate Division has taken a view which is different from that adopted in the Lim Poh Choo case. The approach in England to the question of the unconscious plaintiff as confirmed in the Lim Poh Choo case involves disregarding entirely the use to which non-pecuniary damages may be put. Once, however, it is accepted that the function to be served by an award of damages is a relevant consideration it is difficult to see how the English approach can be followed, even in a modified form. The objection to the English approach to compensating an unconscious plaintiff is not merely that the amount awarded will not serve a useful purpose in ameliorating the loss, which is the aim of the functional approach. The objection is that it will not serve any purpose at all, whether useful or otherwise. In the Reyneke case Claasen AJ thought the solution was a 'paring down' of the damages to take into account the fact that the plaintiff is unable to derive any benefit from the award. But the problem is, a paring down to what? Whatever the amount awarded, it will have no relevance whatsoever to the person whom it is sought to compensate. Where, as a result of injury, a plaintiff is mentally retarded even to the extent that he may have no insight into his loss, provided only that he has awareness, an award of non-pecuniary damages can be utilised for his benefit even if the expenditure is frivolous and does no more than amuse him. Where the plaintiff is unconscious and all his physical needs have been taken care of, the truth of the matter is that it is not possible to compensate him for his loss. It is like paying a dead person money in order to compensate him for the loss of his life. As Windeyer, J put it in the Skelton case, the payment of damages to the plaintiff 'would be of no more benefit to him personally than sending the defendant to gaol would be'. It is true that, if no award of non-pecuniary damages were to be made on account of the unconsciousness of the victim, it would mean that the wrongdoer would benefit. But the simple answer is, of course, that the action is not punitive, it is compensatory. There is accordingly no basis in our law for an approach such as that adopted in Germany where a nominal award, it would seem, is made to reflect society's demand that

1995 (4) SA p94

SCOTT J some retribution be made for the injustice done to the plaintiff. The same is true of Professor Boberg's suggestion that the Courts continue to award a 'nucleus of damages for loss of amenities of life to the unconscious plaintiff a la Gerke' so as to enable 'the law to express society's sympathy with the victim and its sense of outrage at his grievous loss'

(see The Law of Delict (supra at 570)), or the solution offered by Visser and Potgieter Law of Damages at 96, that the award serve as a 'symbolic reparation of the damage' and 'to effect retribution for the injustice, and to soothe the community'. To adopt such a 'solution' would be to import into our modern delictual action a penal element for which, in my view, there can be no justification. (See also Van der Merwe and Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg 6th ed at 195 where the learned authors point out that in our modern law of delict there is no room for penal damages.) Is a departure from the English approach justified? It is difficult in the first place to resist the conclusion that the English approach and, indeed, the distinction between the


subjective and the objective element of the loss of amenities of life owes its existence to the Law Reform (Miscellaneous Provisions) Act, 1934, in terms of which a claim for loss of expectation of life was rendered transmissible. Because of this the need arose to place a value on the loss viewed objectively and it would seem that the distinction between the subjective and objective element of the loss was then simply applied to the case of the unconscious plaintiff. But in South Africa a claim for loss of expectation of life is not transmissible and the need for the distinction does not arise. Nor, for the reasons I have given, is there any logic to it unless the claim in respect of the objective element is, or ought to be, transmissible, because in the end it is only the heirs of the unconscious plaintiff who get the benefit. The position in England is hardly satisfactory. There has been a remarkable difference of judicial opinion on the subject and the need for review would seem to be acknowledged. I can see no justification for blindly following the English approach. The persons who will really be prejudiced if an award of non-pecuniary damages is not made are Lee-Ann's parents, the plaintiff and his wife. I have much sympathy for them. The accident and its consequences must have caused them much grief and sorrow. But they do not claim damages for their grief and inevitable bereavement. Nor, as a matter of policy, could such a claim ever, I think, be entertained. The social burden would be too great. Whatever the position may be in England or for that matter in any other country, the funds available in South Africa will not stretch that far. It is common knowledge that the hospital authorities are desperately short of money. Free medical treatment has recently been afforded to all children under the age of six years. Reference is made to this in the Rule 37 minute. All this costs money. The same is true in the case of other public bodies which are defendants in actions arising out of bodily injuries. As sympathetic as I am to Lee-Ann's parents, I can see no justification for indirectly awarding them damages for their bereavement. The refusal to award non-pecuniary damages in the present case

1995 (4) SA p95

SCOTT J would also constitute a radical departure from the decisions in the Gerke case and the Reyneke case. There are also, no doubt, other unreported cases in which damages have been awarded in similar circumstances. Nonetheless, there is no great body of precedent which, in my view, would justify the perpetuation of an award of damages which I regard as being contrary to principle and the law. Finally, the question arises whether the decision in Bailey's case not to embrace the functional approach obliges me to make an award of non-pecuniary damages in the present case. I think not. The functional approach involves limiting an award to an amount which can serve a useful purpose. In the circumstances of the present case, however, any award would not only serve no useful purpose, it would serve no purpose at all, whether useful or otherwise. The claimant, by reason of her condition, is in truth, incapable of being compensated by a monetary award. In the Bailey case the Court was not concerned with the case of an unconscious plaintiff and was accordingly dealing with a very different situation. It follows that the conclusion to which I have come is that the plaintiff is not entitled to an award of non-pecuniary damages. The order that is made, and as agreed between the parties in the event of the defendant being found liable, is that the defendant is directed to provide at the Tygerberg Hospital all future medical and hospital care for Lee-Ann until her death. It was also agreed between the parties that in the event of negligence being established, the defendant will have no claim against the plaintiff for past hospital and medical expenses. It follows that the defendant has no claim for such expenses. Finally, as to costs, the plaintiff has been substantially successful and is entitled to his


costs. The defendant is accordingly ordered to pay the plaintiff's costs, including the qualifying expenses of Dr Ramages and Dr Thomson. Plaintiff's Attorneys: Goldblatts, Parow. Defendant's Attorney: State Attorney.

collins v administrator cape 1995 - learning -...

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