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[2021] ZAWCHC 70
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De Lange N.O obo Roode v Road Accident Fund (18349/2017) [2021] ZAWCHC 70 (21 April 2021)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: 18349/2017
In
the matter between:
ADV
F.A. DE LANGE N.O. obo ADELE ROODE (‘the
patient’)
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
Coram:
Bozalek J
Heard:
23 & 24 February, 23 March, 12 April 2021
Delivered:
21 April 2021
JUDGMENT
BOZALEK
J
[1]
The
plaintiff sues as
curator
ad litem
on behalf of Ms Adele Roode (‘Ms Roode’) seeking special
and general damages from the Road Accident Fund for injuries
sustained by her following a catastrophic motor cycle accident on 17
January 2016.
[2]
The
merits of the claim were conceded in full by the defendant and the
quantum was to be determined in a trial commencing on 23
February
2021. On that day counsel advised that they had reached agreement on
the quantum of the claim and were simply awaiting
a mandate from the
defendant’s head office. The matter was postponed to 23 March
2021 for the necessary mandate to be obtained
but this was not
forthcoming. In the interim parties reduced their informal agreement
to writing as follows:
1.
The
defendant admitted the plaintiff’s expert reports and a joint
minute of the industrial psychologists and agreed that no
oral
evidence needed to be led;
2.
Past
medical expenses were agreed as per the Road Accident Fund bill
reviewers’ approval in the amount of R1 022 280.00;
3.
Future
medical and related expenses would be covered by means of an
Undertaking in terms of sec 17(4)(a) of the Road Accident Fund,
56 of
1996;
4.
Future
loss of earnings were agreed in the amount of R4 910 750.00 and;
5.
General
damages were agreed at R1 700 000.00.
[3]
The
defendant’s legal representatives were unable to obtain the
necessary mandate by a deadline on 26 March 2021 and accordingly
a
further hearing was arranged for 12 April 2021. On that occasion
counsel simply made submissions and no evidence was heard.
[4]
In
the absence of a mandate from the defendant to accept the informal
agreement arrived at it is necessary for this Court to satisfy
itself
that any damages award is fair, and to give a judgment.
[5]
Ms
Roode is presently 36 years of age and was 31 years old when she was
involved in an accident as a pillion rider on a motorcycle
driven by
her husband. No collision occurred but the motorcycle rolled. The
patient sustained a severe closed head injury which
has left her
wheelchair bound and unable to stand or walk unaided. She also
sustained a comminuted supracondylar and intercondylar
fracture of
the left humerus. She was admitted to hospital for approximately four
months. The management included intubation, ventilation,
sedation,
analgesics the insertion of an extra ventricular drain, a left elbow
open reduction and internal fixation reconstruction,
a tracheotomy,
reinsertion of the extra ventricular shunt, the insertion of a
permanent VP shunt due to refractory obstructive
hydrocephalus and
the insertion of a gastrotomy (PEG). In a supplementary report made a
year after the accident Dr J Reid, a neurologist,
found the following
upon examination:
1.
Profound
neurocognitive compromise;
2.
Incontinence
3.
Profound
changes in the patient’s personality, behaviour and emotion;
4.
No
insight into her problems and irrationality.
5.
Inappropriate
joking;
6.
Substantial
lack of insight;
[6]
Other
sequelae are:
1.
Moria
2.
Pathological
reflexes in all four limbs;
3.
Absence
of dexterity in both hands, worse on the left;
4.
Flexion
contracture of the left elbow;
5.
Spasticity
of both lower limbs;
6.
Hopeless
short-term memory;
7.
Prominent
dysgraphia, dyslexia and sensory and motor dysphasia;
8.
Impaired
visuospatial functioning;
9.
Limited
problem solving and
10.
Atrocious
general knowledge
[7]
Dr
Reid’s opinion was that the patient had reached maximum medical
improvement and that even if mild improvement materialised
it would
make no difference to her functional impairment.
[8]
Ms
Celeste Jordaan, an occupational therapist, reported on the
significant impact of the head injury suffered by the patient and
confirmed the following:
1.
She
suffered a severe head injury resulting in neurological and
neurocognitive deficits. Additionally, she suffered cervical
spondylosis
with disc pathology at C6 and multiple fractures;
2.
The
patient still wears nappies due to bladder incontinence and has
regained bowel sensation but relies on assistance to transfer
onto
toilet;
3.
In
general, the patient is dependent on support with personal care as
she is unable to groom herself or dress independently or cut
food;
4.
The
patient is fully dependent in respect of all home management tasks.
[9]
The
patient underwent a personality change which has profoundly affected
her relationship with her family.
[10]
The
patient’s husband has filed for a divorce and her two minor
children are no longer living with her.
[11]
I
deal now with the various heads of damages.
Past
medical/hospital expenses
[12]
The
defendant has by means of the Road Accident Bill reviewers’
approval tendered an amount of R1 022 280.00 which amount
has been
accepted by the plaintiff. In the circumstances there is no need to
query this amount.
Future
hospital, medical and related expenses
[13]
The
defendant has proposed an Undertaking in terms of sec 17(4)(a) of the
Road Accident Fund, 56 of 1996 which likewise has been
accepted by
the plaintiff and requires no further comment.
Loss
of earnings/earning capacities
[14]
It
is common cause that the patient’s injuries have rendered her
permanently unemployable. Prior to the accident the patient
had,
after completing her matric, worked as a debt collector and then
qualified as a beautician having earned a diploma in Somatology
from
the Cape Peninsula University of Technology.
[15]
At
the time of the accident she had not been in formal employment for
several years but instead was a homemaker and had raised her
children
with the intention of returning to formal employment when they were a
little older.
[16]
Based
on a joint minute of the respective parties’ industrial
psychologists agreement was reached on a pre-morbid career path.
An
actuary was instructed to calculate her loss of earnings with an
agreed contingency of 35% to be applied. This relatively high
figure
was utilised given inter alia the lack of certainty as to precisely
when the patient would have returned to formal employment.
Her future
loss of earnings, based on the scenario as agreed upon and having
applied the proposed contingency amounted to R4 910 750.00.
This sum represents her full loss given that there is no possibility
of her ever being gainfully employed again in future.
[17]
Having
regard inter alia to the joint minute of the parties’
respective industrial psychologists, I am satisfied that the
sum
which the legal representatives have agreed to in principle
represents a fair award under this head of damages and that the
contingency deduction for the uninjured income is realistic and
appropriate.
General
damages
[18]
The
principle agreement reached between the parties in respect of this
head of damages was the sum of R1 700 000.00. The above recitation
of
the injuries suffered by the patient, the hospitalisation and medical
treatment which she underwent as well as the accompanying
pain,
suffering, shock and discomfort underline the profound nature of her
injuries and their consequences.
[19]
The
patient has been left with extensive permanent disabilities and
deficits. The course of her entire life has changed. From being
an
independent mother and wife bringing up two children she is now a
ward of her parents, for the time being at least, and will
never
again enjoy the pleasures of a full family and married life and the
ongoing company of her growing children. Neither will
the patient
ever enjoy the satisfaction of working again or being able to care
for herself or be independently mobile.
[20]
The
plaintiff sought to justify the in principle agreed amount of
R1 700 000.00 as general damages on the basis of three
authorities. The firs,
Benade
NO obo AR v Road Accident Fund
[1]
,
concerns a 32 year old woman involved in a cycling accident who
sustained severe injuries including multiple maxillo-facial, oral
and
dental injuries and a moderately severe closed head injury. As a
result, she became mentally slow with a general cognitive
decline and
her concentration and attention became poor. She suffered from
depression, anxiety episodes, panic attacks whereas
previously she
had been employed as a sales manager and had taught mathematics and
technology. She was now no longer able to perform
such work. Her
entire personality had changed for the worst and her extensive
sporting activities were no longer possible. She
also sustained
extensive lacerations over the right breast and chest wall and a
severe degloving of the left lower leg involving
the Achilles tendon.
As the Court put it the ‘
collision
deprived (A) of everything she was before’
.
The Court awarded an amount of R1 300 000.00 as general damages in
2018 which equates in present terms to an amount of approximately
R1
470 000.00.
[21]
In
Khokho
obo MG v RAF
[2]
the patient was run over by a motor vehicle and sustained severe
bodily injuries which included a severe traumatic brain injury,
a
skull fracture, multiple lacerations and abrasions on the forehead,
arm, elbow and lower leg. He was hospitalised for more than
two weeks
and readmitted due to the development of a subdural haematoma.
Overall he suffered severe organic brain damage being
left with a
greatly impaired walking gait, was unable to ambulate without
assistance and had cerebral signs and tremors in his
right arm. He
was partially paralysed in the lower limbs and his speech was
severely impaired. He suffered from severe neuropsychological
deficiencies in particular severe impaired attention, working memory,
information process and mental tracking deficiencies. He
too
sustained a personality change after the collision and suffered from
bouts of rage. He was left with impaired insight and reasoning
ability and suffered depression. He struggled to wash and groom
himself, was unable to clothe himself and required his mother’s
assistance with that and other daily needs.
[22]
The
plaintiff was awarded R1 500 000.00 as general damages in September
2009 which equates to R1 630 000.00 in present terms.
[23]
Finally,
in
Dlamini
v RAF
[3]
the plaintiff was awarded R1 350 000.00 in general damages which has
a present value of approximately R1 786 000.00. The plaintiff
suffered a severe brain injury with intracranial bleeding and
multiple contusions, a fractured mandible and facial injuries. As
a
result of the brain injury he suffered from ataxia, a diminution in
his cognitive capacity and was rendered unemployable and
unable to
fulfil the roles of husband to his wife or father to his children. He
could no longer cope with household duties or take
part in sport and
was dependent on others and in need of care and supervision. His
inability to follow conversations left him socially
isolated.
[24]
It
is trite that a Court enjoys a wide discretion to award what it
considers to be fair and adequate compensation to an injured
party.
Similarly, it is generally accepted that awards in comparable case
are no more than a guide, not least because cases are
seldom alike in
all material respects.
[25]
The
patient in the present matter was a comparatively young woman when
she suffered severe and life changing injuries. In many respects
her
life has been blighted and she will spend the rest of her life in the
care of others, unable to live with any substantial degree
of
independence.
[26]
Having
regard to the pain, suffering, shock, discomfort, including the
lengthy period of hospitalisation she underwent and the permanent
deficits and disability with which she has been left, I consider that
the amount of R1 7000.000.00 is a fair and reasonable sum
by way of
general damages.
Costs
[27]
The
parties were agreed in principle that the plaintiff be entitled to
the costs of the action as between party and party. However,
the
plaintiff sought also the wasted costs caused by the postponement of
the matter to 12 April 2021 together with the further
costs of
arguing the matter, such costs to be awarded on an attorney and
client scale. In this regard it was contended that the
defendant’s
failure to furnish a mandate to its legal representatives to accept
the in principle agreement reached between
the legal representatives
reflected unacceptable incompetence or a dereliction of duty on the
part of the defendant and that the
patient should in effect be
indemnified from any legal costs arising therefrom.
[28]
The
background to the defendant failing to furnish its legal
representatives with a legal mandate appears to be that any
settlement
in excess of R5mil has to be approved by the defendant’s
head office in Tshwane. Although the defendant’s senior counsel
had submitted a memorandum furnishing advice and motivating for the
proposed settlement the only response received was on 7 April
2021 to
the effect that no documentation would be signed by the executive
pending the receipt of certain information. It would
appear however
that that information was furnished to it and had in fact been
furnished on an earlier occasion.
[29]
There
appears to be a degree of miscommunication or poor communication
between the defendant’s executive and its legal
representatives.
Having regard to the circumstances of the matter as
a whole however I can see no sound basis for an order for costs on a
punitive
scale. The incident in question comes at the tail end of the
litigation. Plaintiffs’ counsel was on brief on two trial days
when the matter did not proceed and will presumably be reimbursed as
part of the costs order in respect of those days. The hearing
on 12
April 2021 was a brief one. Although the defendants’ failure to
furnish a mandate to its legal representatives is regrettable,
ultimately there were no serious consequences for the plaintiff.
Another important factor is the current state of the Road Accident
Fund which by all counts lurches from one crisis to the next, is
functionally insolvent and is making desperate attempts to reduce
the
incredibly high level of legal costs for which it has become liable
either by way of its own legal representatives or the legal
representatives of claimants. All such legal costs and the
concomitant awards are in effect financed by the tax payer by way of
the Road Accident Fund levy included in the fuel price. Any punitive
costs awards are therefore met by the taxpayer and in that
sense
sends no message to the Road Accident Fund or its executives or at
best a message which is unlikely to have any effect whatsoever.
In
the result I decline to award any part of the costs on an attorney
and client basis.
[30]
For
these reasons it is ordered that the defendant shall pay the sum of
R7 633 030.00 as damages to the plaintiff, shall
provide an
Undertaking in terms of sec 17(4)(a) of the Act in respect of future
medical costs and shall award the plaintiff the
party and party costs
including the costs of counsel and the qualifying and other expenses
of the expert witnesses utilised. The
defendant shall also pay the
costs of the
curator
ad litem
and the costs relating to the future appointment of a
curator
bonis
and incidental costs in that regard.
[31]
The
court’s full award is contained in the annexure A hereto.
BOZALEK
J
For
the Plaintiff
:
Adv E Benade
As
instructed by
DSC Attorneys
For
the Defendant
: Adv M
Salie SC
As
instructed by
Mohulatsi Attorneys
[1]
Judgement delivered on 16
November 2018.
[2]
Corbett and Honey ‘The
quantum of damages and orally and fatal injury cases’ Vol 3
A4125.
[3]
Case number 59188/13 Gauteng
Division 3 September 2015