Langley Fox Building Partnership (Pty) Ltd v De Valence (647/88) [1990] ZASCA 128; 1991 (1) SA 1 (AD); [1991] 3 All SA 736 (AD) (4 October 1990) (2024)

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

CASE NO:647/88

In the appeal of
LANGLEY FOX BUILDING PARTNERSHIP (PTY) LTDAPPELLANT
and
PATRICIA POUPINEL DE VALENCERESPONDENT

Coram: BOTHA, MILNE, STEYN et EKSTEEN JJA, GOLDSTONE AJA.

Date heard: Monday 20 August 1990

Date delivered: Thursday 4 October 1990

2 JUDGMENT

GOLDSTONE AJA:

On 13 August 1982 the respondent, Mrs Patricia Poupinel de Valence, was asuccessful audiometrician. She conducted a private practicein partnership witha Mr Carter. On that day she was walking on a sidewalk, outside Hunt's Corner, abuilding situate in the centralbusiness district of Johannesburg. A wooden beamhad been suspended between two trestles at right-angles across the sidewalk. Therespondent struck the left side of her forehead against the beam. At first theinjury caused thereby was thought to have been minor.
3 However, it has hadthe most serious and unfortunate consequences for the respondent. In an actionheard in the Witwatersrand LocalDivision, Van Schalkwyk J held that theappellant, Langley Fox Building Partnership (Pty) Ltd, was negligent in relationto the erectionof the wooden beam and he ordered it to pay damages to therespondent in the amount of R181 408,45 and the costs of suit.

The appellant now appeals to this court against the finding that it is liableto compensate the respondent for any loss sustainedby her. In turn, therespondent cross-appeals, claiming that she should have been awarded damages inthe amount of R593 070.00.

It is common cause that on the day in question the appellant was engaged inbuilding operations at Hunt's Corner. More particularly,in terms of itscontract with the owner of the
4 building, the appellant was engaged in "theerection and completion of proposed refurbishing and additions to the groundfloor"thereof. Pursuant to the terms of the contract, the appellant hademployed a number of sub-contractors to perform aspects of thework. One suchsub-contractor was A Dudley and Sons. Mr D W Dudley gave evidence for therespondent. He described himself as a directorof the firm. It was employed bythe appellant to install a ceiling under an overhead canopy which protrudes overthe sidewalk atthe entrance to Hunt's Corner. From the evidence of Mr Dudleyand Mr Rogerson, the caretaker of Hunt's Corner, it emerged that onthe day inquestion, A Dudley and Sons was probably engaged in the installation and forthat purpose it would have erected a meansof enabling its workmen to haveaccess to the canopy. That means, according to Dudley, could well have been awooden beam suspendedbetween two trestles.
5 Both Dudley and Rogerson weresomewhac vague as to the events of August 1982. They testified some five yearsafter the occurrenceand that vagueness is hardly surprising. Neither witnesswas able to state positively that the beam into which the respondent walkedwasin fact erected by A Dudley and Sons.

On behalf of the appellant it was submitted in the Ccurt
a guo, andagain before this Court, that the respondent failed
to establish who erectedthe beam into which she walked.

It is the submission that it may have been any one of a number
ofsub-contractors of the appellant or even an entirely

independent contractor such as a painter, electrician, municipal

inspector or signwriter. The learned Judge a quo held that
althoughthe evidence of Dudley was not conclusive upon the

issue, the probability pointed to the beam indeed having

been erected by A Dudley and Sons. I agree. The only evidence
6beforé the trial Court was to the effect that on the day in question thatfirm was on the site and that it would have reguiredscaffolding to be erectedunder the canopy. That is where the beam in question was situate at the relevanttime. The defendant placedno evidence before the Court a quo to suggestthat the beam was erected by any other sub-contractor or contractor. Thesubmission advanced on behalf ot the appellantis theretore tounded upon nothingmore than speculation.

When she was first called to testify, the respondent was silent as to whetherthere were signs in the vicinity of the beam warningpedestrians of the dangercaused thereby. The absence of such evidence was one of the grounds advanced atthe close of the respondent'scase in support of an application for absolutionfrom the instance. In refusing that application Van Schalkwyk J held that evenifwarning signs had been erected
7 (and he assumed that they had indeed beenerected) they may have been insufficient co have drawn the attention of therespondentto the danger. He said that in the circ*mstances the properprecaution might have been the erection of a barrier to ensure that itwas notpossible for anybody to enter the area where a collision with either thetrestles or the beam might have occurred.

The question of warning signs was again raised during the
argument at theconclusion of the trial. In the course of
his reply on behalf of therespondent, her counsel applied
at that late stage to reopen her case so asto lead further

evidence on this issue. The trial was postponed to enable

a formal application to be made. That was done. The application
wasopposed on the ground that at an earlier stage in the

trial the respondent's advisers were aware of this shortcoming

and they elected to proceed without curing it. The application
8 wasgranted and the respondent was recalled. She testified to the effect that indeedno warning signs had been erected in the vicinityof the beam.

On behalf of the appellant it was submitted that Van Schalkwyk
J erred inallowing the respondent to be recalled to testify.

In support of that submission counsel relied upon the judgment

of Millin J in Epstein v Arenstein and Another 1942 WLD 52.

It was there held that where a party, having evidence at his

disposal, deliberately elects not to put it before the court

because of the opinion that it is unnecessary, such party

will not be allowed to reopen his case for the purpose of

leading that evidence. The learned Judge added (at p 62) that

the Court ought to allow it where the evidence in possession of the

party who intended.to lead it was omitted through inadvertence.

(See also the authorities cited in the minority judgment of

Van Winsen AJA in Mkwanazi v Van der Merwe and Another 1970

9 (1) SA 609 (A) at 627 A - H.)

In an affidavit in support of the application to reopen the respondent'scase, her attorney stated on oath, inter alia, that during herevidence-in-chief he was out of the court room negotiating an agreement with theappellant's attorney on the quantumof the respondent's claim for past medicaland hospital expenses. He was unaware that the respondent had not given evidencerelatingto the absence of warning signs and had he been so aware he would havereminded appellant's counsel to lead such evidence. He addedthat:

"I would mention to the above Honourable Court that the Applicant had instructedme from the time of my first consultation with herrelating to this case thatthere were no warning signs present on the pavement in New Street South on theday of the

10

accident and it was always the intention of the Applicant to give such evidencein court."

He referred to the fact that anappropriate averment had been made in the respondent's further particulars fortrial. It is therealleged that:

"(ii) They (the appellant) displayed nowarning

signs of any description of the presence ofthe wood beam;

(iii) They provided no protective barriers which

could or would have prevented such an accident."

A corroborating affidavit from the réspondent accompanied herapplication. Her counsel explained to the trial Judge that hehad inadvertentlyomitted to question the respondent
11 concerning this aspect of the case. Inthis regard he referred to the difficulty which the respondent experienced inthe witnessbox owing to her mental condition and more particularly theadjournments which were requested by reason of her difficulties whilstshe wastestifying. No opposing affidavits were filed by or on behalf of theappellant.

Appellant's counsel, in opposing the application to reopen the respondent'scase, and again in this Court, placed much reliance uponthe following avermentmade in his affidavit by the respondent's attorney:

"9. The reason for the lateness of the application was that both counsel andmyself were of the view, and we still are of the view,that the Plaintiff hasproved the requisite negligence against the Defendant on the strength of theevidence presented on her
12 behalf thus far, particularly having regard to the fact that the Defendantled no rebutting evidence after the application forabsolution from the instancehad been dismissed by his Lordship Mr Justice VanSchalkwyk."

He went on to state that therespondent's counsel -

"felt that if our view of the law was incorrect, that it may be prejudicial tothe Applicant if an application to reopen her casewas notmade."

This attitude of the respondent's legal advisers,submitted counsel, amounted to an election not to lead the evidence in question.I do not agree. The uncontradicted evidence establishes that the failure to leadthe evidence from the respondent was a consequenceof inadvertence. The realquestion

13

is whether the delay in bringing the application to reopen the respondent'scase amounted to an election to abandon the issue or forsome reason disentitledthe respondent from succeeding in the application.

It is true that such an application could have been brought at any time afterthe alleged lacuna in the respondent's evidence was referred to by theappellant's counsel, ie. during the argument in support of the application forabsolution. That there was a delay in moving the applicaiton is apparent.However, delay in pursuing a right does not necessarilyindicate an intentionnot to exercise it in the future, ie. an abandonment thereof. At the highest,the attitude of the respondent'sadvisers was one of complacency in the light ofthe judgment refusing absolution. But they did nothing and said nothing toindicatethat the right to make the application was being abandoned by or onbehalf of the respondent. It was simply
1 4 not exercised. There is not eventhe suggestion that this right was appreciated by the respondent or positivelycontemplat-edby her or her advisers. It follows, in my opinion, that thelearned Judge a quo was entitled to entertain the application even at thelate stage when it was brought. In approaching the merits of the applicationhefully appreciated that he was called upon to exercise a judicial discretion.Ingranting the application the learned Judge tookinto account that:

(a)the opposition was founded solely on the alleged election which he found nottó have been established;
(b)the appellant had led no evidence at all on the issue of liability;
(c)there was no prejudice to the appellant if the evidence was led at a latestage in the trial;

15

(d) the matter was one of importance to the respondent.

I canfind no reason to interfere with the exercise by the Judge of his discretion.The appeal must therefore be decided on the basisthat the further evidence ofthe respondent was properly before the Court a quo.

On behalf of the appellant it was further submitted that the respondent didnot in fact establish that there were no warning signserected. It was arguedthat on her own evidence, prior to the accident she had her gaze cast upon theground ahead of her becauseof the bad condition of the paving. She could not,therefore, say that she would have seen such signs before she collided with thewooden beam. After the accident, so it was further argued, she was too dazed tohave made a reliable observation. These submissionsmust be rejected. In the

16

first place she testified positively that she saw no warning signs before theaccident. Secondly, and more importantly, shortly afterthe accident, therespondent returned to the scene with her attorney and her partner and theydiscussed the fact that there wereno warning signs in the vicinity of theobstruction. Again, no evidence was led on behalf of the appellant to contradictthat evidence.

I come now to consider whether the liability of the appellant has beenestablished by the respondent. First of all, the legal principleswhich arerelevant. The general rule of our law is that an employer is not responsible forthe negligence or the wrongdoing of anindependent contractor employed by him:Colonial Mutual Life Assurance Society Ltd v Macdonald 1931 AD 412 esp at428, 431/2; Dukes v Marthinusen 1937 AD 12 at 17. That is also a generalrule of the English law. However, for well over a century the English courtshave
17 recognised a number of exceptions to it. These exceptions have, so tospeak, been compartmentalised. In Charlesworth and Percy on Neqligence 7ed paras 2.140 - 2.148 they are discussed under the general heading of"Contractor employed to perform a duty thrown by law on employer".It is said,that:

"If an employer, who has to perform a duty, imposed on
him either by statute or by common law, makes a contract
with an independent contractor for the performance of
that duty, instead of doing it himself, he is liable
for the negligence of the independent contractor in carrying
it out... The cases, in which a duty is thrown upon an
employer, are: (i) in relation to dangerous things;

(ii) dangerson the highway; (iii) duties imposed by

statute; and (iv) where an act involves special risk
of damage..."

18

In Fleming, The Law of Torts 7 ed at 361, some of these categories aredescribed as a

"disguised form of vicarious liability"

which is

"imposed wherever the defendant is said to be under a 'non-delegable' duty, inthe sense that he cannot acquit himself by exercisingreasonable care inentrusting the work to a reputable contractor but must actually assure that itis done - and done carefully. Froma practical standpoint, its most perplexingfeature is the apparent absence of any coherent theory to explain when, and why,a particularduty should be so classified..."

19

In Salmond and Heuston on the Law of Torts 19 ed at 544/5 on the otherhand, one reads the following:

"The liability of the employer of an independent contractor is not properlyvicarious: the employer is not liable for the contractor'sbreach of duty; he isliable because he himself has broken his own duty. He is under a primaryliability and not a secondary one.Hence it is misleading to think of the law onthis point as a general rule of non-liability subject to a.more or less lengthylistof exceptions. The real question is whether the defendant is, in thecirc*mstances of the particular case, in breach of a duty whichhe owes to theplaintiff. If the plaintiff proves such a breach it is no defence to say thatanother has been asked to perform it.The performance of the duties, but not theresponsibility

20

for that performance, can be delegated to another. This seems to be all that ismeant by talk of 'non-delegable duties'".

It was substantially inthat way that Stratford ACJ understood the English authorities in his judgmentin the only case in which,until now, this question has received detailedconsider-

ation in this Court. viz Dukes v Martninusen (supra). Thelearned Acting Chief Justice (at 18) adopted the view expressed in
an articlewhich appeared in the 1934, vol 50 Law Quarterly
Review that all of theso-called exceptions to the general

rule of non-liability are instances which rest

"upon the existence of a duty of the employer the failure to perform which hascaused the injury".

(The article, which was written by StephenChapman, appears

21

at 71 and not at 571 as reflected in the reported judgment). Still withreference to the English law, Stratford ACJ says (at 18):

"In other words, it is the existence of a duty on the part of the employer of anindependent contractor that determines his liabilityfor injury resulting fromthe operation which he has authorised the contractor to dc. If there is no dutyto take precautions againstinjurious consequences of the work authorised therecan be no liability of the author for those consequences."

Then,at 20, the learned Acting Chief Justice continued:

"Having referred to the great number of cases quoted
in argument and mentioned in the above-mentioned article,
I come unhesitatingly to the same conclusion as did the

22

learned author of that article so far as English law is concerned, and that is,that in cases like the one now before us, the liabilityof an employer mustresult from the breach of a duty owed by the employer to the person injured inconsequence of such breach."

The learned Acting Chief Justicethen turned to consider the South African law on the subject. He referred to thefact that in a numberof judgments in the provincial divisions the English lawhad been followed. At 23 the learned Judge continued:

"This does not necessarily mean that this Court should do the same. If thedecisions had disregarded fundamental principles of ourlaw, we might have toreassert those principles even at the cost of reversing judgments of longstanding. Fortunately, in my judgment,we are faced,

23 in thiscase, with no conflict between the two systems. The English law on the subjectas I have stated it to be is in completeaccord with our own, both systems restthe rule as to the liability of an employer for any damage caused by work heauthorises anotherto do upon the law of negligence... In all questions ofnegligence that imaginary person, the reasonable man, must be invoked andmustbe made to pronounce his suppositious view. What should a reasonable mananticipate? What should he do to avoid possible injuriousconsequences of hisacts which reasonably he should anticipate? Questions of negligence are nearlyalways difficult, and it has beensaid more than once in this Court (quotingBeven, I think) that the question of negligence can never be disentangled fromthe facts.It follows from the law as I have stated it to be that the first andcrucial question in this case is to ascertain on the facts of

24 the case where there was a duty on the employer who authorised the demolitionof these buildings to take precautions to protectthe public using the highwayfrom possible injury. If there was such a duty it could not be delegated and theemployment of an independentcontractor is an irrelevant consideration. The dutyif it is to be inferred must arise from the nature of the work authorised takinginto consideration all the circ*mstances of its execution such as, inparticular, the place of such execution."

It follows from thepassage just cited that in every case
the answer to the question whether ornot the duty arises
must depend on all the facts. Bearing that fundamentalapproach

in mind, there are passages elsewhere in the judgment which
appear tosuggest that there might be a liability as an

invariable rule whenever the work entails danger to the public.

25

Thus, for example,. at 20, Stratford ACJ cites with approval the followingpassage from the judgment of De Villiers CJ in Newman v East London TownCouncil 12 SC 61 at 72:

"But assuming that the negligent acts of the contractor were not the acts of thedefendants, the obvious question arises. Why didthey not adopt some precautionsagainst such negligent acts? I can well understand the doctrine that a personwho employs an independentcontractor upon works which, in the ordinary course,would entail no danger to the public, is not liable for incidental injuriescaused by the contractor's negligence. But, where, as in the present case, thework is to be performed upon and near a public road,and it may reasonably beanticipated that, without due precautions, the safety of the public using theroad will occasionally beendangered by the carelessness of the workmen, it issurely an act of

26

hegligence to order the work, without the precautions."

The sametest was appliéd by Stratford ACJ in his application of the facts to thelaw. At 24 he said:

"Thus the test in this case narrows down to the question whether the demolitionof these buildings abutting on tne highway was adangerous operation in thesense that public safety was imperilled by it unless precautions were taken toobviate that peril. Ifthe answer is in the affirmative, the law casts upon theauthor of the operation the duty to take those precautions, and the breachofthat duty is called culpa or negligence."

This test againimposes an invariable liability upon the employer in every case where thework involves an operation which is likely to create a danger to the public.That approach

27
is repeated when, after finding that the demolition of the buidings inquestion would create such a danger, Stratford ACJ at 27 referswith approval tothe following words of A L Smith LJ in Holliday v National Telephone Co (1899) 2 QB 392 at 400:

"In my opinion... it is very difficult for a person who
is engaged in the execution of dangerous works near a
highway to avoid liability by saying that he has employed
an independent contractor, because it is the duty of
a person who is causing such works to be executed to
see that they are properly carried out so as not to occasion
any damage to persons passing by on the highway."

Stratford ACJat 29 expressed the following conclusion:

"To conclude, then, the demolition of these buildings

28

abutting on the road was a dangerous operation in the sense that it mightreasonably be anticipated that, without due precautions,the safety of thepublic using the road might occasionally be endangered (I have paraphrased LORDDE VILLIERS' words quoted above).In such circ*mstances it was the duty of theemployer to see that such precautions were taken, and her failure to do so wasnegligenceand she is liable in this case for the consequences of thatnegligence."

That Dukes v Marthinusen laid down a wide andnon-delegable duty was the understanding of Colman AJ in Crawhall v Ministerof Transport and Another 1963 (3) SA 614 (T) at 617 G - H where the learnedJudge said:

"... if work has to be done on premises to which the
public have access, and that work can reasonably beexpected

29

to cause damage unless proper precautions are taken,
the duty of the occupier to see that those precautions
are taken and thatthe premises are safe persists, whether
he does the work himself or through his own servants
or delegates it to an independent contractor. That seems
to me to be the effect of the judgment of Stratford ACJ
in Dukes v Marthinusen 1937 AD 12..."

This formulation oftke rule in effect, though not in terms, imposes upon the employer of anindependent contractor a kind of vicariousliability unknown in our law ofdelict. In my respectful opinion, on a proper analysis of his judgment,Stratford ACJ did not intendto depart from the well established principles ofour law to which he referred in the first part of his judgment.

In Rhodes Fruit Farms Ltd and Others v Cape Town City Council

30

1968 .(3) SA 514 (C), Van Wyk J was apparently alive to the

wide implications which some of the dicta in Dukes v Marthinusenmight have. However, he gave the judgment of Stratford ACJ a narrowinterpretation. At 519 D he said:

"After a careful examination of that decision I come to the conclusion that itlays down no more than that if work entrusted to anindependent contractor is ofsuch a character that, if the contractor does the work and no more, danger willensue, then liabilityfor damages remains with the employer on the failure ofhis contractor to take precautions in addition to doing the work. It is thedutyof the employer to take such precautions as a reasonable person would take inthe circ*mstances. I do not, however, considerDukes case as an authorityfor the proposition that the employment of a skilled independent contractor,where the extent of the danger

31 and the reasonably practicablemeasures to minimise it can only be determined by such skilled person, cannot inany circ*mstancesconstitute a discharge of the employer's aforesaid duty. Nosuch principle exists in Roman-Dutch law.

There may well be situations in which a reasonable person would rely solely onan independent skilled contractor to take all reasonableprecautions toeiiminate or minimise damage to another, and in such circ*mstances it could notbe said that he was negligent if suchcontractor fails to act reasonably.
In my opinion, therefore, the duty to take care where the work undertaken isper se dangerous could in some cases be discharged by delegating itsperformance to an expert."

In my judgment, the correct approachto the liability of an

32
employer for the negligence of an independent contractor is to applythe fundamental rule of our law that obliges a person to exercisethat degree ofcare which the circ*mstances demand. In Cape Town Municipality v Paine 1923 AD 207 at 217 Innes CJ said:

"The question whether, in any given situation a reasonable
man would have foreseen the likelihood of harm and governed
his conduct accordingly, is one to be decided in each
case upon a consideration of all the circ*mstances.
Once it is clear that the danger would have been foreseen
and guarded against by the diliqens paterfamilias, the
duty to take care is established, and it only remains
to ascertain whether it has been discharged. Now, the
English Courts have adopted certain hard and fast rules
governing enguiries into the existence of the duty and
the standard of care required in particular cases.Speaking

33

generally, these rules are based upon considerations which, under our practice,also would be properly taken into account as affectingthe judgment of areasonable man; and the cases which embody them are of great assistance andinstruction. But, as pointed out inTransvaal Estates v. Golding andFarmer v. Robinson Gold Mining Co. (1917, A.D., p. 18 and p. 501), thereis an advantage in adhering to the generai principle of Aquilian law and indetermining theexistence or non-existence of culpa by applying the testof a reasonable man's judgment to the facts of each case. The larger latitudeallowed in such an enquiry isto be preferred to restriction within the morerigid limits of the English rules."

Whether the circ*mstancesdemand the exercise of care will depend upon proof that the employer owed theplaintiff a duty of care andthat the damage suffered was not too remote.

34

In this regard it is as well to have regard to the following passage from thejudgment of Schreiner JA in Union Government v Ocean Accident and GuaranteeCorporation Ltd 1956 (1) SA 577 (A) at 585 A - E:

"Without venturing unnecessarily near to the problem whether remoteness restsupon foreseeability or upon directness, one must recognisesome relation betweenremoteness and the duty of care. According to ordinary usage the former dealswith the extent of the defendant'sliability to the plaintiff, whoever he maybe, the latter with the persons who are entitled to sue the defendant. Theexpression"duty of care" has sometimes been criticised as introducing anunnecessary complication into the law of negligence, but, apart fromthe factthat it is endorsed by considerable authority in this Court, it isso

35
convenient a way of saying that it is theplaintiff himseif and no other, whose right must have been invaded by thecareless defendant,that the complication seems rather to be introduced by theeffort to avoid its use. The duty of care is in our case law rested uponforeseeability and this gives rise to a measure of artificiality. But this isreally unavoidable for, if there is to be control overthe range of persons whomay sue, the test must be that of the reasonable man; what he would haveforeseen and what action he wouldhave taken may not be calculable according tothe actual weighing of probabilities, but the device of reasoning on these lineshelpsto avoid the impression of delivering an unreasoned moral judgment excathedra as to how the injurer should have behaved. The duty of care fitsconveniently into the reasoning process and

36 even if it is no more than a manner of speaking it is a very usefulone."

In Peri-Urban Areas Health Board vMunarin, 1965 (3) SA 367

(A) the issue concerned the liability of the employer of an

independent contractor for damages arising from the death
of a third partywho was injured in consequence of the dangerous
operations being performed bythe contractor. In Lhe coursc
of his judgment in terms of which theemployer's liability
was confirmed, Holmes JA said, (at 373 E - H):

"Negligence is the breach of a duty of care. In general, the law allows me tomind my own business. Thus, if I happen to see someoneelse's child about todrown in a pool, ordinarily I do not owe a legal duty to anyone to try to saveit. But sometimes the law requiresme to be my brother'skeeper.

37
This happens, for example, when thecirc*mstances are such that I owe him a duty of care; and I am negligent if Ibreach it. I owehim such a duty if a diligens paterfamilias, thatnotional epitome of reasonable prudence, in the position in which I am in, would-

(a)foresee the possibility of harm occurring to
him; and

(b)take steps to guard against its occurrence.
Foreseeability of harm toa person, whether he be

a specific individual or one of a category, is usually not a difficultquestion, but when ought I to guard against it? It dependsupon thecirc*mstances in each particular case, and it is neither necessary nor desirableto attempt a formulation which would coverall cases. For the purposes.of thepresent case it is sufficient to say, by way of general

38

approach, that if I launch a potentially dangerous undertaking involving theforeseeable possibility of harm to another, the circ*mstancesmay be such that Icannot reasonably shrug my shoulders in unconcern but have certainresponsibilities in the matter - the duty ofcare."

In my opinion, it follows from the aforegoingthat in a case such as the present, in my opinion, there are three broadquestions whichmust be asked, viz:

(1)Would a reasonable man have foreseen the risk of danger in consequence ofthe work he employed the contractor to perform? Ifso,
(2)Would a reasonable man have taken steps to guard against the danger? Ifso,

39

(3) Were such steps duly taken in the case in question?

Onlywhere the answer to the first two questions is in the affirmative does a legalduty arise, the failure to comply with which canform the basis of liability.With respect, in Dukes v Marthinusen (supra) there are somedicta which tend to obscure the second crucial question.

It follows from the aforegoing that the existence of a duty upon an employerof an independent contractor to take steps to preventharm to members of thepublic will depend in each case upon the facts. It would be relevant to considerthe nature of the danger,the context in which the danger may arise, the degreeof expertise available to the employer and the independent contractor,respectively,and the means available to the employer to avert the danger. Thislist is in no way

40

intended to be comprehensive. It does follow, however, that the duty of anowner of premises such as the present may not be the sameas that of thebuilding contractor employed by him to do the work. That question, too, must beanswered with due regard to the facts.

I turn now to consider the facts in the instant case. The work undertaken bythe appellant was to refurbish and make additions tothe ground floor of thebuilding. That work included the erection of a ceiling under a canopy protrudingover a public sidewalk.The building contract was a substantial one providingfor payment to the appellant of a contract sum of R135 962,00. The contractreguired the appellant to take out a public indemnity insurance policy in thesum of R1 million. Work other than that performed byA Dudley and Sons requiredthe appellant to erect scaffolding in the vicinity of the sidewalk. Itappeared
41 from questions put during the cross-examination of Mr Rogerson bythe appellant's counsel that the public was protected from thatdanger bycordoning off the scaffolding and requiring pedestrians to walk around it. Thebuilding contract required the appellantto

"constantly keep upon the Works a competent foreman."

On the dayof the accident A Dudley and Sons had erected across the sidewalk the beam andtrestles. That obstruction was not cordonedoff and no warning signs had beenerected to warn pedestrians of its presence.

The first question to be considered is, then, whether the appellant shouldreasonably have foreseen the risk of danger to pedestriansin consequence of thework it employed A Dudley and Sons to perform. One sees from the photographswhich

42
form part of the record that the canopy is a substantial one andprotrudes over practically the whole area of the sidewalk beneathit. It isobviously too high to be reached by workmen from the sidewalk. In my view itwould have been obvious to the appellant thatthe workmen erecting the ceilingunder the canopy would reguire to be elevated above ground level in order toperform the work. Inorder to achieve that, it must have been foreseen tnat someform of construction would be required and that it would form an obstructiononthe sidewalk. An obstruction of such a nature on a busy city sidewalk wouldnecessarily constitute a source of serious potentialdanger for pedestriansusing that sidewalk. To place it there, and no more, was an inherently dangerousact. In my opinion, the appellantas a building contractor should reasonablyhave foreseen that danger. That it did so in relation to its own scaffoldingappears fromthe questions, already mentioned, to Mr Rogerson by the appellant'scounsel. In

43

short the appellánt should have realised that the work was inherentlydangerous.

The second question is whether a reasonable person in the position of theappellant would have taken steps to guard against the danger.Here there is apaucity of factual material. There is no evidence at all as to the contractualrelationship between the appellantand A Dudley and Sons. There is noinformation as to the history of the relationship between them. Mr Dudley and MrRogerson wereboth the respondent's witnesses. They were extremely vague. Theycould remember none of the detail such as, for example, the dayon which theobstruction was erected. One knows no more than that,as a probability, it wasthat obstruction into which the respondentwalked.

In my opinion, the absence of the detail to which I have just
44 referredis hardly the fault of the respondent. She established that the obstruction wasinherently dangerous. Unless there werespecial circ*mstances present,especially with regard to the relationship between the appellant and A Dudleyand Sons, I am of theopinion that, being cognizant of the danger to members ofthe public, the appellant, as a substantial building contractor, shouldnotsimply have left it to the contractor to take adeguaLe stepc to protect suchpeople from that danger. Through its foreman, constantlyrequired to be on site,the appellant, as a probability, would have been in a position to prevent theerection of the dangerous obstructionwithout adequate precautions having beentaken. Whether such precautions were to be taken by the appellant or thecontractor, asbetween them, is a matter depending on their contract. As far asthe duty to the public in general and the respondent in particularis concernedit matters not. That duty rested upon the appellant. If indeed there were

45

special facts or circ*mstances which in law might have relieved the appellantof its duty to take adequate precautions, they wereclearly and peculiarlywithin its own knowledge. The respondent established facts which at leastprima facie placed such a duty upon the appellant. No evidence to thecontrary was placed before the trial Court to disturb that prima faciecase. It follows, in my judgment, that the second questton must also be answeredaffirmatively in favour of the respondent.

The third question is whether such steps were taken by the appellant. Theywere not. In my view the only adequate precaution in thecirc*mstances wouldhave been to cordon off the obstruction. I do not believe that warning signswould have been sufficient. As evensuch signs were absent the breach by theappellant of the duty resting upon it is manifest. In all the circ*mstances,therefore,the learned

46

trial Judge correctly held the appellant liable to compensate the respondentfor the damages sustained by her.

It was submitted by appellant's counsel that the particulars of plaintiff'sclaim did not encompass this cause of action, ie. thatthe erection of thetrestles and beam constituted a dangerous obstruction. Again, I cannot agree.The following allegations, inter alia, were made on behalf of therespondent:

"4.1 They (the appellant) failed and/or neglected to to ensure that the saidbuilding operations were being conducted in a safemanner.

4.2 They failed to warn, alternatively, adequatelyto

warn members of the public that building operations were in progress at allmaterial times hereto.

47

4.3 Being aware :hat the said pavement was being used by members of the publicthey owed a duty of care to ensure the safety of membersof the public and inbreach of that duty they neglected to warn the public that building work was inprogress and/or that the saidbuilding was being refurbished and/or neglected toensure that said pavement was in a safe condition to be used by members of thepublic.
4.6 They failed to avoid an accident when by the reguisite skill and care theycould and should have done so."

It is true that infurther particulars for trial, allegations were made to the effect that theappellant itself erected the trestlesand the wooden beam. However, the evidenceto the effect that it was probably the sub-contractor which did so was ledwithout objection.The application for absolution

48

from the instance at the close of the respondent's case was argued, interalia, on this assumption. Before evidence was led on behalf of theappellant, therefore, the precise nature of the respondent's case wasknown tothe appellant. Any ambiguity or omission in the respondent's pleadingstherefore, in no way prejudiced or misled the appellant.

Finally, on the merits, it was submitted on behalf of the appellant thatthere was contributory negligence on the part of the respondent.It was arguedthat she failed to keep a proper lookout. She kept her gaze on the ground aheadof her without looking upward and aheadof her when she could and should havedone so. As I have already held, pedestrians walking on a city sidewalk areentitled to assumethat, in the absence of adequate precautions or warning, theway is clear and safe. Furthermore, according to her uncontrovertedevidence,the surface of the sidewalk in the vicinity of the

49

obstruction was broken and uneven and for that reason she was watching thesurface of the sidewalk immediately in front of her. Inall the circ*mstances, Iam satisfied that the respondent's failure to look up and notice the wooden beamcannot be ascribed to negligenceon her part. I might add that, as pointed outby respondent's counsel, the suggestion that she was guilty of contributorynegligencewas not canvassed with her in cross-examination. For the aforegoingreasons the appeal must be dismissed.

I proceed now to consider the cross-appeal. The central issue is whether therespondent is suffering, as advanced on her behalf, fromorganic brain damage,or whether, as advanced on behalf of the appellant and found by Van Schalkwyk J,she is suffering solely froma post-traumatic psychoneurological syndrome. Theformer condition is irreversible whilst the latter is likely to be wholly orpartiallycurable. The

50

resolution of this issue has a very material effect upon the quantum of therespondent's damages arising from her future loss of earningcapacity.

The respondent was born on 12 September 1934. She and her husband, Dr dsValence, were married in 1966. He is a medical physicist.They have no children.Before her marriage the respondent qualified in London in diagnostic audjometry.She began her practice inaudiometry in Johannesburg in 1964. By 1982 it hadexpanded to include sattelite clinics in Benoni, Florida and Vereeniging.

Immediately after she received the blow to her head, the respondent developeda headache which involved the whole cranium. Her foreheadbegan to swell. Shewas able to hold a conversation with her attorney, Mr Rosen, and her partner, MrCarter. During that consultation,the swelling became so noticeable
51 thatMr Rosen suggested that she have it photographed. She did so and the photographswere exhibits at the trial. That Friday eveningthe respondent was able tofunction normally at a dinner party at her home. She did have a headache whichcontinued into the followingday. The first unusual symptom manifested itself onthe Monday morning. When she woke up she introduced herself to her husband. Herealised something was amiss and he made an appointment for her to see theirgeneral practitioner, Dr John. He diagnosed severe concussionand insisted onbed rest for ten days. With some reluctance she accepted this advice. However,her condition deteriorated. She beganto lose her balance and experienceddifficulty with speech. At the end of the ten-day period her condition was stilldeteriorating.She would stumble and experience bouts of dizziness. When he nextexamined the respondent, Dr John referred her to a neurologist,Dr W G Maxwell.That was on 2 September 1982. According to Dr Maxwell the respondent

52

complained of a persistent headache and difficulty with sleep. She was tiredand listless and her concentration and memory recallhad been severly affected.Her personality had altered dramatically. She had lost confidence and tended tobe irrational and depressed.On examination Dr Maxwell found her to have a milddysphasia, ie. a difficulty with her speech. More particularly she groped forwords and occasionally misused them. He found evidence of a mild paralysis ofthe right side. This was evidenced by an alterationin the tone and reflexes onthat side. It was also indicated by a drift of the outstretched arm with theeyes closed. Power on theright side was minimally decreased. She also had asubjective impairment of sensation on the right.

Dr Maxwell had the respondent admitted to the Sandton Clinic where heundertook various examinations. A computerised axial tomography(CAT) scan wasperformed on 3 September 1982.

53
The report indicated no abnormality. On the following day Dr Maxwellperformed a lumbar puncture. This showed slightly raised pressure.Electroencephalographic studies showed a diffuse abnormality with a randomexcess of sharp wave activity. Dr Maxwell's response wasthat the respondent hadsustained a subarachnoid haemorrhage, the acute signs of which had resolved butwhich had left neurologicaldeficits. She was treated with various medicationsand kept in hospital for about two weeks. Thereafter she was seen as anoutpatient.

The respondent continued to experience bad headaches. She

was unable to cope with her life either at home or in her

practice. She became forgetful and distractable. Even a

door opening would cause her to lose the trend of a conversation.

According to both the respondent and her husband she attempted

to return to work in her practice. In the result she felt

that she could not cope with the responsibility. After making
54 theseattempts on some ten or twelve occasions she gave up. During October 1983 therespondent received a letter from Mr Carterterminating the partnership.According to the respondent he told her that he did not want a "brain-damagedpartner".

Some eighteen months after the accident, when her symptoms were stillpersisting, Dr Maxwcll refmrred the respondent to Dr D Saffer,head of theneurology department at Baragwanath Hospital, who has a particular interest inspeech problems. A further electroencephalograph(EEG) and a CAT scan were takenand the respondent was referred to Professor M Saling, a neuropsychologist onthe staff of the PsychologyDepartment at the University of the Witwatersrand.She was also seen by experts at the National Institute for Personnel Research(NIPR). Since about that time the respondent had been seeing a psychologist , DrCora Smith, on an on-going basis.

55

Professor Saffer testified. He said that when he first saw the respondent heexamined her original CAT scan. He found an abnormalityin that the leftventricle of the brain appeared to be slightly larger than the right ventricle.Then, in July 1984, a radiologist,Dr Diers, took a further CAT scan. Accordingto his evidence this showed a small area of gliosis (scarring) just to the leftof thelateral ventricle. According to Dr Diers this scarring must havedeveloped after the first scan had been performed.

Professor Saffer tested the respondent. He found her categorising to beabnormal and this indicated a defect in her left frontal lobe.This witness saidthat the EEG, the scans, and strong clinical impression indicated somethingwrong and that is why he referred therespondent to Professor Saling. Heconcluded that she had underlying organic damage
56 with a possiblepsychological overlay.

Professor Saling stated in evidence that the respondent was suffering from anumber of neuropsychological disorders which are usuallyassociated with acondition of brain damage. He referred in this context to her impaired power ofconcentration, her tendency tobe distracted, her significant memorydisturbance, anu the tsndency for the right side of her body to be lesscoordinated than herleft side. Professor Saling also referred to herright-sided sensory supression which she said was normally associated withdamageto the left side of the brain. She has had a personality change in thatshe becomes aggressive and irritable for no apparent reason.She feels insecureand unsure of herself. She experiences anxiety which resulted in her becominghouse-bound. She avoids social contacts.All those changes, said ProfessorSaling, reflected damage to the left temporal lobe of the
57 brain.

Dr Smith referred to the respondent as being one of her most regularpatients. According to this witness, the respondent's conditionhas become fixedand is unlikely to improve. She will not be able to be gainfully employed.

Mrs M J Adan is a psychologist employed as a senior scientist at the NIPR.She performed various tests upon the respondent. From theresults she concludedthat there was a mild static brain damage present strongly involving the lefthemisphere and which was consistentwith the right-sided sensory and motorproblems that she was experiencing.

Mrs Mary Hansen, an occupational therapist, examined and tested therespondent. She also found abnormalities with the respondent'sright side. Forexample she noticed a marked

58
balance difficulty and that her muscle strength on that side wasslightly weaker than on the left. Mrs Hansen expressed the opinionthat therespondent was unable to cope with a return to work. She could not perform anyfull-time occupation. Some five years afterthe accident, in July 1987, DrMaxwell again examined and tested the respondent. His conclusion was that shesustained a significanthead injury evidenced by nis initial clinicalexamination which showed the presence of a right hemiparesis which has to alarge extentresolved but leaving residual and significant signs. He referred toher facial asymmetry, her dissociated movement and her abnormalEEGs. He wasasked to comment on the normal first CAT scan and a subsequent normal magneticresonance (MNR) scan. The latter, itwould appear, is more sensitive than a CATscan. According to Dr Maxwell one can have extensive dysfunction of the brainbut havecompletely normal scans. He said:

59
"For example if we took a person. with a cerebro-vascular thrombosis itis well accepted that in 25% of patients within the firsttwo weeks of asignificant thrombosis when a person is completely paralysed on one side, thenthey have a completely normal CT brainscan... The magnetic resonance scan isseen in the same light. Again this is limited in its application, it is a veryuseful typeof investigation but again it is showing the more gross things suchas scarring and it is not showing a dysfunction at a fairly lowlevel... Thecrux of the matter as far as the scans are concerned is that one is moreinterested in what is happening at the cellularfunctional level and here theelectro-encephalographic recording and the psychometric tests are of far greatervalue in determiningcerebral function or dysfunction."

60

He also said that:

"The EEG recordings have suggested an epileptogenic dysfunction and on the basisof the recordings together with the clinical historyone is entitled to diagnosethis patient as having post-traumatic epilepsy. The patient is at this stageonly having partial episodes,epileptic episodes, but she is at considerablerisk to develop more overt signs of an epileptic form dysfunction such asgrand mal convulsion. Finally the patient is considered permanentlyincapable of returning to her previous level ofemployment."

With regard to epilepsy, ProfessorNelson, a psychologist and executive director of the NIPR testified to theeffect that the EEGfindings on 28 July 1987 were more abnormal than
61 thoseof 18 April 1986 and continued to suggest a left hemisphere dysfunction,possibly epiieptogenic.

In my opinion, the aforegoing constitutes significant evidence that therespondent suffered some organic brain damage in consequenceof the accident. Ishall consider now the evidence led on behalf of the appellant to counterit.

Dr Z Wolf is a neurologist and psychiatrist. He examined the respondent inJune 1987. He also interviewed her husband. His opinionis that the respondentsustained no organic brain damage and is suffering from a post-traumaticneurosis. He anticipates that withpsychotherapy and settlement of her claim hersymptoms will abate. He also expects her to recover her ability to work. I agreewiththe submission made by respondent's counsel that Dr Wolf's opinion fails totake account of or acceptably explain the abnormal EEGresults

62

or the findings by the respondent's experts of a weakness on her right side.Indeed, during re-examination by the appellant's counsel,Dr Wolf was asked towhat he would attribute her weakness had he diagnosed it. He replied:

"I would have looked for an organic lesion... if there is objective evidence ofweakness you must find an organic basis for it."

DrWolf found no such weakness on his examination.

Dr F D Snyckers is a neurosurgeon. He examined the respondent in aboutNovember 1986. In his opinion the examination demonstratedincongruities in theclinical picture which suggest that at least part of her condition ispsychogenic. He added that:

63

"At present the clinical picture conforms most closely to a post-traumaticsyndrome, markedly aggravated by a conversionstate."

Dr Snyckers, however, agreed that thephysical findings by Mrs Hansen could indicate an organic problem, He alsostated that if therespondent way suffering from epilepsy four years after theaccident one could expect that it would not disappear. Dr Snyckers alsoexpressed the opinion that if there was an actual weakness on the right sidethen one is driven to the conclusion that it is attributableto an organicproblem, ie. a lesion. Dr Snyckers, however, excluded a brain lesion,principally because, if there, it would haveshown up on the MNR scan which hedescribed as being very sensitive. He also considered EEGs to be inconclusive ofbrain damage.In summary, it was the opinion of this witness

64

that the respondent -

"sustained a blunt injury to the forehead, she sustained bruising of the skinand subcutaneous tissue, she ruptured a blood vesselor two between the scalpand the bone. She developed a post-traumatic syndrome and this was three dayslater followed by the developmentof psycholuyicaldisturbances."

Dr V Nell, a clinicalneuropsychologist, examined the respondent in June and July 1987. In his report,confirmed in evidence, Dr Nellsaid:

"The pattern of deficits revealed by the testing is not consistent with anyknown etiology given the background of a bright, humorous,well-oriented andperceptive person, who was clearly visible in

65

the conversational interludes between the test items. However, the qualitativeanalysis of the deficits offered in the precedingsection is entirely consistentwith a pseudoneurological syndrome that derives partly from a sick roleenactment, partly from a conversionreaction, and partly from a conviction thatthe test results should reflect an 'organic' pattern of deficits in memory,sequencingand language comprehension."

In short, DrNell found that the respondent to an extent,
at least, was a malingerer. Whencross-examined on that finding
he tended to withdraw the suggestion. It isrelevant here

to record that every other expert who examined the respondent

rejected any suggestion of malingering. This includes Drs

Wolf and Snyckers. This initial and incorrect diagnosis of

66

malingering, in my judgment, renders Dr Nell's views of less cogency. He didnot express an opinion on the basis that the respondent'ssymptoms and testresults were all genuine.

The appellant called three non-medical witnesses. The first
was Miss GailJacklin. bhe is an audiometrician who was employed

in 1982 by the clinic of the respondent and Mr Carter. She

stated that after the accident the respondent did come into

the clinic from time to time. She came in to keep in touch

but said that she was unable to work. She would make enquiries

about the work being performed in the clinic. The visits

would vary in duration from 30 minutes to two hours. She

told Miss Jacklin and a co-employee, Mrs Kruger, that she

did not feel confident to do testing in case the results were

not correct. Some months later she did perform some tests.

67

She did not remember how many. She remembered her testing the responses of achild whose mother had a hearing problem. Miss Jacklinsaid that in herconversations with the respondent she did not notice the problems that therespondent told her she was experiencing.She was aware of memory problems. Shefound it abnormal that the respondent was unable to do her work because she hadalways beenso obviously involved with it.

From time to time the respondent and Mr Carter held co*cktail parties in orderto promote the services offered by their clinic. Inparticular, contact was madein this way with medical practitioners. At such parties the respondent wouldplay an active public relationsrole. One such party was held after the accidentat Vereeniging. At that time, said Miss Jacklin, there appeared to be tensionbetweenthe respondent

68

and Mr Carter. However, the respondent áppeared to be confident andable to fulfil her role. She did leave the room frequently.On another occasion,also at a similar party, Miss Jacklin remembered the respondent saying that shewas unable to cope and wouldleave the room now and then. Whilst in the room sheappeared to be able to cope adequately. When the respondent left the practiceher share was purchased by Miss Jacklin and Mrs Kruger.

Mrs Kruger also testified. She testified to the respondent coming into theclinic after the accident. She did not remember the respondenthaving given aclear reason for not returning to work. She was somewhat vague and had scantrecall of those visits. She could notremember any problems which the respondenthad concerning memory or her ability to hold a normal conversation. She couldrecall thatshe attended some co*cktail parties after the accident. She noticedno abnormal conduct

69

on such occasions. Mrs Kruger spoke to the respondent on the day that shetestified. She noticed nothing abnormal about her conduct.She did look unkempt,so she testified.

The third lay witness called by the appellant was an attorney, Mr M DMcMullin. He attended a consultation with the respondent andMr Carter atcounsel's chambers on 31 March 1983. The consuitation lasted about an huur and ahalf. The respondent participated inthe consultation and showed no signs ofabnormality. Mr McMullin stated that he had not seen the respondent from thatday until hesaw her on the day he testified. He said that he was "shocked atwhat she presents today". Under cross-examination Mr McMullin saidthat duringthe consultation Mr Carter appeared to take the lead. Although he could notrecall it, it was possible that the respondentwas unable to answer questionsthat counsel put to her. In re-examination Mr McMullin said that the only changein the
70 respondent that he could recall was that she could not remember aswell after the accident.

Concerning the Vereeniging party Dr De Valence recalled that on the precedingday the respondent had received Mr Carter's notice oftermination of thepartnership. She was extremely upset as her work was her life. They had nochildren and, according to her husband,the loss of her practice "was ratherlike losing a baby". On the day of the party she had not accepted that she wasgoing to loseher practice. She was determined to perform well at the party. Itwas a very strenuous evening for her and she had to spend the followingtwo orthree days in bed in order to recover from the effort.

The learned Judge a quo made no express credibility findingsconcerning the respondent or her husband. Of the expert witnesses he said:

71

"I have had the opportunity of observing the witnesses and I am certain thateach of the experts told the truth as he or she sawit."

He went on to decide the medical issues on theprobabilities and with regard to the evidence of the three non-medicalwitnesses. Concerningthe respondent's failure to return to her practice, VanSchalkwyk J said:

"I am impressed by the argument advanced by Mr Israel that the plaintiff had novalid reason not to have returned to work on a full-timebasis at any time afterthe accident. This argument is fortified by the evidence of three witnesses, allof whom knew the plaintiffand all of whom assessed her conduct as normal ornear normal at different times

72

after the plaintiff had suffered her injury.

Mr McMullin, an attorney, saw the plaintiff some seven months after herinjury. At that time he was not made consciously aware ofany defect in herbehaviour. When he gave evidence before this court he was shocked by the way inwhich she presented.

I am aware of the evidence which supports the delayed onset of symptomsresulting from an organic brain injury. However, it must berecalled that theplaintiff was not asymptomatic on the day on which she was seen by Mr McMullin.The symptoms, albeit of a lesssevere nature, commenced almost immediately afterthe accident.

How then, does one explain the hospitalisation,

73 loss of memory, loss of balance and other disabilities suffered by theplaintiff within the first month after the injury in termsof the 'symptom-freepost-traumatic period' referred to by Professor Saling. If there were the onsetof a progressive deterioration,which has given rise to the plaintiff's presentcondition, how is it that they were not observed ssveral months later byIndependentwitnesses?
These considerations lead me to consider that the plaintiff has not suffered anorganic brain injury and that she is now sufferingfrom post-traumaticpsychoneurological syndrome. With psychotherapy the plaintiff is likely toeffect a recovery and to return toemployment as anaudiologist."

I have difficulty with these findings.In the first place

74
they seem completely to ignore the evidence of the respondent and Dr deValence as to the reasons why the respondent did not returnto her practice.There was her inability to concentrate, to remember well, her distractability,her inability to cope even in andabout her home. Mrs Hansen, the occupationaltherapist, did a full work assessment and difficulties were found in all areasof workskills that are required. She confirmed the difficulties withconcentration, memory, and understanding of instructions. As I havealreadymentioned, Mrs Hansen was of the opinion that the respondent could not cope withreturning to work. In this context the evidencethat the respondent is not amalingerer is highly relevant. So too, is the complete absence of a pre-morbiddisposition by the respondentnot to work. Indeed, the case is precisely to theopposite effect. She loved her work ánd was happy in a busy andburgeoningpractice.

75

The respondent's post-traumatic inability to cope with her work is supportedby the experts who were consulted by her at the relevanttime and, moreparticularly, Dr Maxwell, Professor Saling, Professor Saffer and Dr Smith. It isalso relevant in this regard thatneither Dr Wolf nor Dr Snyckers suggested thatthe respondent could have worked after the accident. They both found that shewassuffering from a serious chronic and neurotic disability. Whilst theyconsider that her condition is curable I do not understandthem to disagree asto the symptoms exhibited by the respondent at the relevant times. BothProfessor Saling and Dr Smith referredto the respondent's pre-morbid history ofgood adjustment - both marital and career.

In all the circ*mstances, I am of the opinion that the learned Judge aquo placed undue reliance on the somewhat superficial

76
and lay evidence of Miss Jacklin, Mrs Kruger and Mr McMullin.
Theywould have observed the respondent in her most favourable
condition. Theywere not looking for any signs of abnormality
and may not have noticed suchsymptoms as might have presented

themselves.

The learned Judge a quo also appears to have misunderstood ProfessorNelson's evidence with regard to the incidence among persons with no braindamage ofabnormal EEGs. In the course of his judgment he said:

"Under cross-examination Prof Nelson stated that 20% of abnormal EEG's wouldreflect no underlying abnormality. He also said thatan abnormal EEG oftenfollows a head injury."

In fact Professor Nelson's evidence was to the effect that

77
high incidence of abnormal EEGs was to be found in young persons agedabout 12 to 15 years. However of people between the ages of48 and 53 (therespondent's age) one found the lowest incidence of abnormality in EEG results.He added that the respondent's EEGresults would not normally be associated withthe ordinary process of ageing. Even those suffering from Alzheimer's diseasedid notnormally have the kind of EEG exhibited by the respondent's results.

Given the expert testimony of the respondent's witnesses I

am of the view that the probabilities point to the unlikelihood

of the respondent returning to her career or any other meaningful

work. Apart from the symptoms to which I have already referred,

there is also an inablility to retain reading material,

forgetfulness, claustrophobia and lack of attentiveness.

Her symptoms generally appear to make her unemployable.

78

The respondent has therefore lost all of her future earning capacity. On thathypothesis it is not in dispute that the respondentis entitled to an award inthe amount of R593 070.00. Her counsel also claims mora interest on thatamount from the date of the order made by the Court a quo. That she isentitled to such an order follows from the judgment in General AceidsntVersekaringsmaatskappy Suid Afrika Bpk v Bailey N.O 1988 (4) SA 353 (A).

In the result the following order is made:

a.The appeal is dismissed with costs.

b.The cross-appeal is upheld with costs and the order of
trial Court isaltered to read:

79

1.The defendant is ordered to pay to the plaintiff the
sum of R593 070.00together with interest thereon

a tempore morae from 30 November 1988 to date of payment.

2.The defendant is ordered to pay to the plaintiff the
costs of theaction which costs are to include the
gualifying fees of Professors Saffer,Saling and Nelson,
Drs Smith, Diers and Maxwell, Mr G. Jackson, MrsS.
Hansen and Mrs Adan.

MILNE JA ) Concur

STEYN JA )

R J GOLDSTONE