Topic 18

Assessment and quantification – Germanic action

PAIN AND SUFFERING

Sandler v Wholesale Coal Suppliers Ltd

Relevant Section:

o “The question now arises whether this Court should increase the amount awarded to the
appellant for pain and suffering and permanent disability. In considering that question it must
be recognised that though the law attempts to repair the wrong done to a sufferer who has
received personal injuries in an accident by compensating him in money, yet there are no
scales by which pain and suffering can be measured, and there is no relationship between pain
and money which makes it possible to express the one in terms of the other with any
approach to certainty. 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.”

FACTS OF CASE:

o The plaintiff had been injured in a collision by the negligence of the defendant’s servants and
had been awarded a sum for “out of pocket” expenses and £540 for pain and suffering and
permanent injury to a knee.
o The trial court refused to award damages caused by the plaintiff’s absence from his business
for some months
o On appeal the court held that under the circumstances a sum of £100 should be awarded for
the loss caused to the plaintiff's business and that the sum awarded for pain and suffering and
disability should be increased to £1,000.

 Factors which should be considered include:

o The severity and duration of the pain or loss of amenities, even if unremembered;
o The extent of any disability or disfigurement;
o The plaintiff’s awareness of and response to the injuries, both physically and mentally;
o Whether any pain and suffering will occur in future and,
o The plaintiff’s life expectancy.

 Whether a person is a sporting type, or someone who enjoys life, is also relevant, but a
plaintiff’s standing is not relevant in assessing the extent of the pain and suffering involved
 There is a reciprocal relationship between patrimonial and non-patrimonial elements in a
damages award.
 A sum of money awarded to cover costs of paramedical aids, for example, may also serve to
alleviate the plaintiff’s pain and suffering and, although paramedical aids cannot serve as
substitutes for lost limbs, they also in some way compensate for loss of amenities of life.
Care should therefore be taken to avoid duplication

Administrator-General, South West Africa v Kriel

Facts

o The respondent's daughter, M, aged eight at the time, had been hit in the head by a bullet
which had ricocheted during an attempt by the police to arrest a robber. She had been
rendered a paraplegic, paralysed from the neck down, who had survived the catastrophic
bodily injury with her mind intact. While she had the intelligence and while she experienced
the emotions and feelings of any ordinary healthy girl of her age, she was - and for the rest of
her days she would still remain - imprisoned in an inert and helpless body.
o The trial Court had awarded her damages in the sum of R836 631,96 which was to be paid into
a trust fund on her behalf. This sum was made up as follows: (A)(1) past medical expenses R36
797,96; (2) future medical and paramedical expenses R183 817; (B)(1) general damages R150
000; (2) loss of income R152 553; (3) future medical and paramedical costs subsequent to
majority R313 464.
o In an appeal against the quantum of damages awarded, the appellant contended that, in
regard to item (B)(1), the award of general damages, the trial Court had misdirected itself in
that the Judge had found 'that the amounts awarded for paramedical aids should not be
deducted or play any meaningful role when deciding upon the amount of general damages to
award which requires entirely different considerations'. Respondent contended that there had
been no duplication of damages.

Law and Application

o Without the paramedical aids M would be doomed to a wretched existence spent, to the end
of her days, within the walls of an institution: she would remain helpless, comfortless, and
wholly dependent upon others to satisfy her most basic bodily and intellectual needs; and
since her mind was clear there must be added her anguish and frustration flowing from the
realisation of her utter helplessness.
o In disregarding the interrelationship between the patrimonial and non-patrimonial elements
of damages in its assessment, and in treating items (A)(2) (medical and paramedical expenses)
and (B)(3) (future medical and paramedical costs) on the one hand and item (B)(1) (general
damages) on the other as completely discrete and individually distinct components in its total
award of damages, the trial Court had materially misdirected itself.
o In the present case the said components to some degree overlapped and the approach of the
trial Court had resulted to an appreciable extent in an improper duplication of damages.

Conclusion

o In all the circumstances of the case the general damages for pain and suffering and for loss of
the amenities of life should be assessed at R110 000.
o Appeal allowed.

Note

o Further notes on this case may be found in Topic 4 p 9