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[2014] ZAGPJHC 112
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Buthelezi obo v Mkuba v Road Accident Fund (12/26113) [2014] ZAGPJHC 112 (25 April 2014)
REPUBLIC
OF
SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
12/26113
DATE: 25
APRIL 2014
In the matter
between:
ADV ZINHLE BUTHELEZI
obo
MKUBA,
VUZUMZI
......................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
...............................................................
Defendant
J U D G
M E N T
N F
KGOMO, J
:
INTRODUCTION
[1] The plaintiff, a 49 year old
male person and heretofore a carpenter by trade, instituted
proceedings against the defendant for damages arising out of a motor
vehicle collision that occurred on or about 01 August 2009
and at or
near Emangweni Section, Tembisa, Ekurhuleni District, Gauteng
Province wherein or whereat he was knocked down by an unknown
motor
vehicle or vehicle while walking on the pavement of a street.
The driver of the unknown vehicle (“
insured vehicle
”)
as well as the time the alleged collision took place is unknown.
[2] The plaintiff alleged
the unknown insured vehicle’s driver (“
insured
driver
”) was negligent in several respects which have not
been disputed by the defendant.
[3] At the beginning of the
trial, the defendant conceded the issue of liability or the merits,
agreeing to be held liable for 100% of the plaintiff’s proven
damages.
[4] The plaintiff has claimed
for an amount of R4 400 000,00 (four million four hundred thousand
rand) made up of the following heads of damages:
4.1
Estimated future medical
expenses =
R 500 000,00
4.2
Estimated future loss of earnings/
loss of earning capacity/loss of
employment/employability
= R1 000 000,00
4.3
General
damages for pain and suffering, loss of amenities of life, disability
and disfigurement as well as
contumelia
= R3 000 000,00
[5] It is clear that the
plaintiff made a simple arithmetical error in his computations
as the above heads of damages make out a total amount of R4 500
000,00. I assume that the estimated future medical
expenses
were supposed to have totalled R400 000,00.
[6] The plaintiff is assisted in
these proceedings by a
curator ad litem
, Advocate Zinhle
Buthelezi.
[7] The parties further reached
agreement in respect of loss of earnings or earning capacity
in the
amount of R768 477,00 (seven hundred and sixty eight thousand four
hundred and seventy seven rands).
[8] The issue of future medical
expenses was also settled between the parties on the bases
that the
defendant would issue the plaintiff with an undertaking in terms of
section 17(4)(a) of the Road Accident Fund, 56 of
1996 (as amended).
[9] The only outstanding issue
unresolved between the parties was that of general damages.
[10] Both parties are agreed about the
extent of the injuries suffered by the plaintiff as well as the
sequelae
thereof. As a consequence, they further agreed
on dispensing with the leading of
viva voce
evidence:
They argued this issue of general damages on the papers available,
which are common cause.
THE PARTIES’
SUBMISSIONS ON QUANTUM OF GENERAL DAMAGES
[11] The plaintiff submitted and argued that
the general damages herein should be awarded at the sum between
R1
000 000,00 (one million rand) and R1 100 000,00 (one million one
hundred thousand rand). The defendant submitted and argued
that
they be awarded at the sum of R600 000,00 (six hundred thousand
rand).
ANALYSIS
[12] I listened to and considered
submissions and argument from counsel on both sides on general
damages.
Their cases were both anchored on the expert reports
filed by the plaintiff as supported by joint minutes of their
respective orthopaedic
surgeons, Drs D Engelbrecht and C Edelstein;
their clinical psychologists, Ms Lufuno Modipa and Dr Jackie Watts;
the occupational
therapists, Mesdames N September and Mellony Smit;
the neurosurgeons, Drs T S Mpotoane and Frank Snyckers; and the
industrial psychologists,
Ms Sandra Moses and Mr Friedl van der
Westhuizen.
[13] The only difference the two parties
have on this aspect is thus only the quantum to be awarded and
how
each side justifies such quantum.
[14]
The ultimate decision as to how much the
plaintiff should be awarded in general damages lies entirely
within
the ambit and discretion of this Court. Opinions of experts are
only there to assist the court in the exercise of
that discretion and
decision. Consequently, experts should avoid overstepping their
mandates and attempting to usurp the
function of the court. It
is the function of the court to base its inferences and conclusions
ultimately on all the facts
placed before it.
[1]
[15]
Kotzé J put it as follows in
S
v Gouws
:
[2]
“
The
prime function of an expert seems to me to be to guide the court to a
correct decision on questions found within his specialised
field.
His own decision should not, however, displace that of the tribunal
which has to determine the issue to be tried.
”
[16]
Davis J summarised the role of experts and
their reports aptly in
Schreiner
NO & Others v AA & Another
[3]
as follows:
“
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a
particular
party, presumably because the conclusion of the expert, using his or
her expertise, is in favour of the line of argument
of the particular
party. But that does not absolve the expert from providing the
court with as objective and unbiased an
opinion, based on his or her
expertise, as possible. An expert is not a hired gun who
dispenses his or her expertise for
the purposes of a particular case.
An expert does not assume the role of an advocate, nor gives evidence
which goes beyond the
logic which is dictated by the scientific
knowledge which that expert claims to possess.
”
[17] Both counsel in this matter advanced
cogent and seemingly convincing argument in favour of the award
each
claimed would be appropriate in the circumstances herein, and I am
indebted to them for their state of preparedness. However,
this Court
cannot and should not lose sight of its primary responsibility, being
among others, to interrogate the expert reports
in the light of the
plaintiff’s circumstances as they were prior to the accident
and presently, post-accident and then exercise
a value judgment after
taking all relevant and material aspects into consideration.
This Court must also warn itself against
the pitfall of uncritically
accepting one expert view and/or counsel’s submission above the
other.
[18]
This danger was highlighted in
Louwrens
v Oldwage
[4]
wherein Mthiyane JA put it as follows:
“
[27]
Confronted with the battery of experts on either side,
presenting competing and contrasting evidence, the learned
Judge
preferred the evidence of the plaintiff's experts to that of the
defendant without advancing any basis for so doing. All
that he said
was that the opinions of Professor De Villiers and Dr Parker are
based on logical reasoning but he failed to give
any demonstration of
this. The learned Judge did not give equal credit to Drs de Kock and
Stein and Professor Immelman whose views
he harshly dismissed as
being incapable of logical analysis and support. I do not share these
views. The conclusion reached was
clearly wrong. It is an approach
which this Court has recently decried in Michael and Another v
Linksfield Park Clinic (Pty) Ltd
and Another, where it was said:
'(I)t
would be wrong to decide a case by simple preference where there are
conflicting views on either side, both capable of logical
support.
Only where expert opinion cannot be logically supported at all will
it fail to provide “the benchmark by reference
to which
the defendant's conduct falls to be assessed”.'
The
uncritical acceptance of the evidence of Professor De Villiers and
the plaintiff's other expert evidence and the rejection of
the
evidence of the defendant's expert witnesses falls short of the
requisite standard and the approach laid down by this Court
in
Michael v Linksfield Park Clinic. What was required of the
trial Judge was to determine to what extent the opinions advanced
by
the experts were founded on logical reasoning and how the competing
sets of evidence stood in relation to one another, viewed
in the
light of the probabilities. I have already indicated why I found the
evidence adduced on behalf of the defendant to be more
acceptable
than that of the plaintiff's witnesses and why the conclusion of the
trial Court cannot stand.
”
[19]
The learned justice was referring in
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
[5]
to
paragraphs [36] and [37] thereof where the following was stated:
“
[36]
That being so, what is required in the evaluation of such evidence is
to determine whether and to what extent
their opinions advanced are
founded on logical reasoning. That is the thrust of the
decision by the House of Lords in the
medical negligence case of
Bolitho v City and Hackney Health Authority
[1997] UKHL 46
;
[1998] AC 232
(HL (E)).
With the relevant dicta in the speech of Lord Browne-Wilkinson we
respectfully agree. Summarised, they are to the
following
effect.
[37]
The Court is not bound to absolve a
defendant from liability for alleged negligent medical treatment
or
diagnosis just because the evidence of expert opinion, albeit
genuinely held, is that the treatment or diagnosis in issue accorded
with sound medical practice. The Court must be satisfied that
such opinion has logical basis, in other words, that the expert
has
considered comparative risks and benefits and has reached ‘a
defensible conclusion’.
”
[20] That the plaintiff suffered pain as a
result of the accident is not in dispute. However, a reading
of the
orthopaedic reports do not in my view point to the plaintiff having
suffered serious orthopaedic injuries.
[21]
Counsel for the plaintiff argued that the
fact that Dr Engelbrecht has allowed for a possible surgery
in the
event of the bridging
callus
that
had developed in the meantime not healing properly and/or the bone
union in the shoulder area not being complete, the plaintiff
will
possibly suffer further pain in the future points or leads to a
conclusion that a higher award be justified.
[22] It is my finding that that is not what
the orthopaedic surgeons agreed on in their joint minute.
What the
plaintiff is saying is based on speculation which is not supported by
the totality of the evidence insofar as the injuries
to the
plaintiff’s shoulder and right knee are concerned. The joint
report stated among others that the right knee did not
show
significant post-traumatic
sequelae
. Plaintiff’s
counsel harped mostly on the injury to the knee, which in my view is
tantamount to him asking this Court
to peer too far into the crystal
ball and find that the plaintiff is likely to face more pain in the
unforeseeable future. That
in my view is a beacon rather too far in
the light of the circumstances of this case.
[23] Counsel for the plaintiff also argued
and submitted at too great a length in my view, about the effect
of
the neuro-cognitive deficits the plaintiff suffered or is saddled
with, relying on them aggravating the plaintiff’s physical
wellbeing and thus entitling him to a higher general damages award.
[24] I brought this to the counsel’s
attention during argument and I repeat what I said:
Neuro-cognitive deficiencies or
sequelae
played their part in
the determination of the award for future loss of earnings and
earning capacity. Although the argument
cannot be said to be
irrelevant at this stage, it is my finding that these should not play
a significant part in the final determination
of a determination of
the award for general damages.
[25] On the other hand, the fact that the
plaintiff has developed epilepsy as a consequence of the accident
and
has also started wetting his bed twice a week present sufficient
grounds for this Court to consider a relatively high general
damages
award. His amenities of life have been significantly encroached
on with a resultant concomitant loss of face and/or
eternal shame.
A proper balancing act is required.
[26]
I concur with the report of the clinical
psychologist, Lufuno Modipa, when she stated at paragraph
9.9 of her
expert report
[6]
that the plaintiff’s neuro-cognitive profile reveals severe
cognitive deficits which are in keeping with severe head injury.
His present emotional difficulties in the form of severely depressed
mood, irritability and lack of motivation and volition have
brought
about personality changes that are organic in nature. These
have also resulted in loss of amenities of life that
should be taken
into account when the award for general damages is considered.
[27]
I have had insight into and considered the
circumstances and
quantums
of
general damages awarded in the cases quoted by both the plaintiff’s
and defendant’s counsel. It is so that
the two sides are
far apart when the amounts they relied upon are anything to go by.
I have also perused Wepener J’s
judgment in
Nicholson,
Charlene v Road Accident Fund
,
[7]
especially where he warned against High Courts like ours granting
damages at higher scales than those awarded by the Supreme Court
of
Appeal in comparable cases.
[28] As far as possible, I am also firmly of
the view that I am bound by the
stare decisis
principle:
I will, unless there are compelling reasons to distinguish the
decision of a court higher than mine, follow the
higher court when
considering the awarding of general damages herein.
[29]
I also agree with my brother Wepener J when
he ruled in the above case
[8]
that the liberality or conservation of a judge should not play a role
when the determination of general damages (and other heads
of
damages) is being considered. Awards in previous comparable
cases is but one of the considerations which a court should
take into
account when considering the amount of damages to be awarded.
[30]
It is so that three of the four cases
alluded to and relied upon by the plaintiff, namely,
Kgomo
v Road Accident Fund
(decided on 2 September 2011 by my brother Van Oosten J –
awarding R800 000,00 (R949 000,00 by present day values);
Dlamini
v Road Accident Fund
(R850
000,00 awarded, being R955 000,00 in present day value); and
Van
Zyl NO v Road Accident Fund
(decided
on 31 March 2012 in the Western Cape High Court and R850 000,00 (R955
000,00) being awarded have some similarities with
the facts and
circumstances presented in this case in respect of the plaintiff.
However, those facts and circumstances cannot be
said to be
on-all-fours
with
those of the plaintiff herein. The same can be said about the
comparable cases quoted and used by the defendant’s counsel,
namely,
De
Jongh v Du Pisanie
,
[9]
Nicholson
v RAF
,
[10]
Hurter
v RAF
,
[11]
Modan
NO v RAF
[12]
and
Mathys
NO v RAF
[13]
:
Although their facts and circumstances cannot also be said to be
on-all-fours
with
those prevailing in this case, the awards thereat were significantly
lower than those quoted by and/or for the plaintiff.
[31]
In
De Jongh v
Du Pisanie
the court awarded R250
000,00 in comparable circumstances which amounts to R453 000,00
updated to 2013. In
Nicholson v
RAF
the plaintiff was awarded R400
000,00 during March 2012. In
Mathys
NO v RAF
Kathree-Setiloane J of this
Court awarded general damages of R500 000,00 to a plaintiff who had
suffered severe brain injury and
minor orthopaedic injuries and who
was admitted to hospital with a GCS of
10
/
15
.
[32] While appropriate and fair compensation
should be made to injured persons, care must be taken that
astronomical and out of synch awards are made. As Holmes J (as he was
then) put it in another case:
“
The
court must take care to see that its award is fair to both sides –
it must give just compensation to the plaintiff, but
it must not pour
largesse from the horn of plenty at the defendant’s expense.
”
[33] As the expert reports put it, the
plaintiff herein suffered traumatic head injuries whose
sequelae
he will suffer for the rest of his life. Although he can to some
extent still work as a carpenter, the injuries he sustained will
make
it difficult for him to do so as before or with any reasonable
endurance. R1 000 000,00 however is, in my view and finding,
an
inappropriately high award in the circumstances. Similarly, an award
of R600 000,00 as suggested by the defendant through its
counsel is
inappropriately low in the circumstances. An amount in between
those two figures is in my view and finding a figure
that will
adequately and fairly compensate the plaintiff as general damages for
pain and suffering, loss of amenities of life,
disability and
disfigurement as well as contumelia.
ORDER
[34] In the circumstances I make the
following order:
34.1
The
defendant shall make payment to the plaintiff in the amount of R1 568
000,00 (one million five hundred and sixty eight thousand
rand) made
up of the following heads of damages:
34.1.1
R768 477,00 (seven hundred and sixty eight thousand four
hundred and
seventy seven rand) in respect of loss of earnings or earning
capacity;
34.1.2
R800
000,00 (eight hundred thousand rand) in respect of general damages;
which amount shall be paid as follows:
34.1.3
directly
to the plaintiff’s attorney’s trust account, the details
of which are as follows: Account Holder
:
Zwelakhe Mgudlandlu Attorneys
Bank
: First
National Bank
Branch Code
:
2.............
Account Number :
621.....................
34.2
The defendant is directed to furnish the plaintiff with an
undertaking in terms of section 17(4)(a) of the Road
Accident Fund
Act 1996 (Act 56 of 1996) as amended, to pay 100% of the costs of any
future accommodation of the plaintiff in a
hospital or nursing home,
or treatment or the rendering of service to him or the supplying of
goods to him arising out of the injuries
the plaintiff sustained in
the motor vehicle accident or collision which occurred on 01 August
2009, after such costs have been
incurred and upon proof thereof;
34.3
The undertaking referred to in paragraph 34.2 above shall include all
the costs of the creation and administration
of a Trust to be formed,
including:
34.3.1
The costs of the trustee in administering the plaintiff’s
estate and the costs of administering the statutory undertaking
furnished in terms of section 17(4)(a) of the Road Accident Fund
Act,
56 of 1996 (as amended), as determined by the Administration of
Estates Act, 1965 (Act 66 of 1965) (as amended);
34.3.2
The defendant’s liability in respect of the Trust
shall be
limited to the prescribed tariff applicable to a
curator bonis
,
as reflected in Government Notice R1602 of 1 July 1991, specifically
paragraphs 3(a) and 3(b) of the Schedule thereto;
34.4
The
defendant shall pay the plaintiff’s taxed or agreed party and
party costs on the High Court scale, such costs to include:
34.4.1
the costs attendant on or upon the obtaining of payment
of the
capital amount referred to in paragraph 34.1 above;
34.4.2
the preparation costs of the plaintiff’s experts;
34.5
The
party and party costs referred to in paragraph 34.4 shall be paid
directly to the plaintiff’s attorney’s trust account;
34.6
The
trustee shall pay the plaintiff’s attorney’s as well as
counsel’s fees for professional services rendered
and their
disbursements from the capital amount referred to in paragraph 34.1
above;
34.7
The
trustee shall be entitled to call for an appropriate taxation of the
plaintiff’s attorney’s (attorney and client)
costs and
disbursements, if deemed necessary;
34.8
The
plaintiff’s attorneys, Zwelakhe Mgudlandlu Attorneys, shall:
34.8.1
Cause a Trust to be established in favour of the plaintiff
in
accordance with the provisions of the Trust Property Control Act,
1988 (Act 57 of 1988), as amended, within a reasonable period
after
the granting of this order;
34.8.2
In the event that a Trust is not created within a reasonable
period
after the granting of this order, payments contemplated to or for the
trustee in paragraph 34.1 above shall be paid to the
plaintiff’s
attorney who shall invest the said amounts in a trust account in
terms of section 78(2)(A) of the Attorneys’
Act, 1979 (Act 53
of 1979), as amended, for the benefit of the plaintiff, namely,
Vusumzi Mkuba;
34.8.3
The Trust instrument as contemplated in paragraph 34.2
above shall
make provision for,
inter alia
, the following:
34.8.3.1
The
plaintiff (Vusumzi Mkuba) to be the sole beneficiary;
34.8.3.2
The
nomination of Martha Magdalena Prinsloo as the first trustee, who is
a trustee of ABSA Trust Ltd;
34.8.3.3
The
trustee of the Trust to be formed shall take all the requisite steps
to secure an appropriate bond of security to the satisfaction
of the
Master of the High Court, for the due fulfilment of his/her duties
and to ensure that the bond of security is submitted
to the Master of
the High Court at the appropriate time as well as to all other
interested parties;
34.8.3.4
The
remuneration of the trustee shall be at a rate equivalent to (and not
exceeding) that of a
curator
bonis
as contemplated in the
Administration of Estates Act 66 of 1965
, as
amended;
34.8.3.5
The
duty of the trustee to disclose any personal interest in any
transaction involving the Trust property;
34.8.3.6
The
exclusion of contingent rights of the beneficiary in the event of
cession, attachment or insolvency of the beneficiary, prior
to the
distribution or payment thereof by the trustee to the beneficiary;
34.8.3.7
The
termination of the Trust only with the leave of the court,
alternatively
,
on the death of the plaintiff (Vuzumzi Mkuba), in which event the
Trust property shall pass to the estate of the plaintiff (Vuzumzi
Mkuba), whichever event occurs first;
34.8.3.8
The
amendment of the Trust instrument subject to the leave of the court;
34.8.4
The provisions referred to in paragraph 34.8 above shall,
in
accordance with the provisions of the Trust Property Control Act 57
of 1988, be subject to the approval of the Master.
34.9
This order must be served by the plaintiff’s attorneys on the
Master of the High Court and the nominated
trustees within 15
(fifteen) days of the granting of this order.
N
F KGOMO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
FOR
THE PLAINTIFF
INSTRUCTED
BY
ZWELAKHE MGUDLANDLU ATTORNEYS
JEPPE STREET, JOHANNESBURG
TEL NO: 011 – 333 7447/7421
FOR
THE DEFENDANT
MR L ADAMS
INSTRUCTED
BY
LINDSAY KELLER ATTORNEYS
ROSEBANK, JOHANNESBURG
TEL NO: 011 – 880 8980
DATE
OF HEARING
23 APRIL 2014
DATE
OF JUDGMENT
25 APRIL 2014
[1]
See
unreported judgment by Wepener J in
Nicholson
Charlene v Road Accident Fund
,
Case No 07/11453, GSJ, decided on 30 March 2012.
[2]
1967
(4) SA 527
(EC) at 528D.
[3]
2010
(5) SA 203
(WCC) at 211J-212B.
[4]
2006
(2) SA 161
(SCA) at para [27].
[5]
2001
(3) SA 1188
(SCA); see also
National
Justice Compania Naviera SA v Prudential Assurance Ltd
1993 (2) Lloyds Reports 68 81.
[6]
At
page 118 of the paginated Bundle C of the record.
[7]
Supra.
[8]
At
page 24 paragraph [42] thereof.
[9]
2005
(5) SA 457
(SCA).
[10]
As
referred to above, being Case No 07/11453 (GSJ).
[11]
2010
(6A4) QOD 12 (ECD) decided in December 2011.
[12]
C&B,
A4-123 Quantum of Damages Vol VI.
[13]
C&B,
A4-273 (Vol VI – Quantum of Damages).