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[2014] ZAGPJHC 392
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Makhetha v Road Accident Fund (2010/17218) [2014] ZAGPJHC 392 (8 September 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case No: 2010/17218
DATE: 08 SEPTEMBER 2014
In the matter between:
MAKHETHA,
THABANG
.............................................
Plaintiff
And
ROAD ACCIDENT
FUND
.........................................
Defendant
JUDGMENT
FRANCIS J
1. The plaintiff instituted an action
for damages against the Road Accident Fund, the defendant, after he
had sustained injuries
in a motor collision on 13 March 2009 between
motor vehicle X……. then being driven by one T J
Makhetha and a motor
vehicle F………. then being
driven by an unknown person. At the time of the collision, he was a
passenger in
vehicle X……...
2. The defendant has conceded liability
in favour of the plaintiff. All heads of damages have been settled
except for general damages.
3. At the commencement of the
proceedings, the plaintiff brought an application to amend the
particulars of claim in respect of
the amount claimed for general
damages from R600 000.00 to R1 050 000.00. The application was
opposed by the defendant on the
grounds that it will suffer prejudice
if the amendment was granted. When counsel was pressed to indicate
what prejudice the defendant
would suffer he was unable to indicate
any. Since the defendant was unable to prove any prejudice that it
will suffer, I granted
the application.
4. The parties agreed that the matter
would proceed before me by way of a stated case. The reports of the
plaintiff’s experts
were admitted. The following reports were
filed by the plaintiff:
4.1 Dr Read an orthopaedic surgeon.
4.2 Dr Marus a neurosurgeon.
4.3 Dr Digby Ormond-Brown a
neuropsychologist.
4.4 Dr Hough an otorhinolaryngologist.
4.5 Dr Olivier an ophthamologist.
4.6 A Roos an occupational therapist
5. It is common cause that the
plaintiff is a 33 year old male who was a bricklayer at the time of
the accident. As a result of
the injuries sustained in the collision
he is unemployable in the open market.
6. He sustained a severe brain injury
with permanent brain damage, a base of skull fractures; loss of
vision; loss of hearing and
soft tissue injuries to his
cervical and thoracic spine, left
shoulder, left hip, left knee and left hemiparesis.
7. The plaintiff was examined by Dr
Read who found that he has a head injury with severe headaches. He
has severe neck stiffness;
partial hemiparesis on the left; loss of
vision in the left eye and loss of hearing in the right ear. He then
dealt with the cervical
and thoracic spine injuries and found that he
remains markedly symptomatic with regards to his axial skeleton. He
is tender from
the upper cervical spine all the way down to the
thoracic spine. His cervical spine is very stiff. He found that he
has symptoms
in and signs of an impingement syndrome of his left
shoulder. He has symptoms and signs of a soft tissue injury with
internal
derangement of the left knee. In the left hip injury he has
symptoms and signs of trochanter bursitis.
8. Dr Read found that all the symptoms
that the plaintiff has can be contributed to the accident. He found
that the symptoms are
likely to be of a chronic ongoing nature and
will require conservative, surgical treatment. He may require
further investigation
and possible surgery of his cervical spine as
x-rays show minor spiking of C6 and C7 with disc narrowing at the
C5/6 level which
changes are unusual for him at his age. He has an
impingement syndrome of the left shoulder for which he requires
conservative
treatment. He will also require conservative treatment
for his left hip and left knee injuries.
9. Dr Read found that the plaintiff has
experienced a severe degree of pain and suffering as a result of the
injuries he sustained
in the accident. He can no longer play soccer.
He has difficulty with heavy, physically demanding duties in and
around the home.
He made deference to the neurosurgeon in respect to
the brain injury.
10. Dr Marus, a neurosurgeon found that
the plaintiff sustained a severe concussive (diffuse) brain injury.
He has probable anterior
base of the skull fractures involving the
left orbit; a left optic nerve injury; a right middle fossa fracture
with residual right
sided hearing loss and soft tissue injury to the
cervical spine.
11. Dr Dibgy Ormond-Brown a
neuropsychologist found that the plaintiff sustained a very severe
traumatic brain injury which is apparent
from the lengthy period of
impairment of consciousness; long duration of post-traumatic amnesia;
radiological findings of punctate
intracranial haemorrhages; multiple
skull fracture and cranial nerve palsies and clinical signs of brain
injury: aphasia and left
hemiparesis. He found that he has
significant neuropsychological impairments. His profile is strongly
consistent with relatively
greater damage to the right hemisphere
which implicates right hemispheric dysfunction. He has marked
difficulties associated with
attention and concentration. He has
major impairment of visual memory but lesser impairment of verbal
memory. He has substantial
difficulties with constructional praxis.
He has a serious impairment of executive brain
functions. His function is further
compromised by his mood disorder and has chronic pain. He concluded
that the combination of
these various sources of impairments result
in a significant level of disability. He has sustained a severe
diffuse brain injury
in the accident and has been left with serious
neuropsychological impairments. The most significant limiting factor
in the workplace
is the organic brain injury that he has sustained.
He lacks the mental capacity to hold down a job. His mental
shortcomings imply
that he will make many errors in the workplace.
He is half-blind, half-deaf and cannot concentrate properly and has
difficulty
putting things together. He is incapable of managing a
large amount of money and his funds should be protected. There has
been
a massive loss of amenities and he has been deprived of many of
the usual pleasures of life.
12. Dr Hough, an otorhinolaryngologist,
found that the plaintiff sustained a fracture of the base skull,
causing a permanent hearing
loss in the right ear, and this will
never recover, neither can it be treated with an operation. As far
as his ear, nose and throat
problems are concerned, he is not fit to
work other in any environment where he is exposed to loud noise,
because it might affect
his only hearing left ear. His hearing loss
is permanent and will not recover.
13. Dr Olivier, an ophthalmologist,
said that as a result of the head and neck injuries sustained in the
accident, the plaintiff
has developed atrophy in his left eye. He is
blind in the left eye and his condition is permanent and will not
improve. The loss
of vision in his left eye is 100% and the total
loss of vision
in both eyes together is 25%.
14. A Ross is an occupational therapist
who said that the plaintiff will benefit from attending a pain
clinic. The aim is functioning
restoration of physical functioning
utilising an interdisciplinary approach with the aims to restore the
range of movement; restore
muscle coordination and movement control;
improve muscle endurance; improve general condition; re-educate the
plaintiff in the
difference between normal physical loading and pain
and reduce the fear and avoidance behaviour. He will require
assistance with
personal care and home management tasks. He would
benefit with the use of assistive devices aimed at maintaining good
biomechanical
posture during tasks. He would benefit from
occupational therapy. He will require a case manager who is usually
an occupational
therapist, speech therapist or social worker with
experience in working with head injury individuals and their
families. From
a psycho-cognitive perspective his skills also appear
to be impaired. He is expected to function at a basic level of
independence
in everyday activities and life skills with a supportive
and structured environment where he receives guidance and supervision
from his family and friends. He may require supervision and support
when dealing with critical and complex decisions and financial
issues.
15. The issue that arises for
determination in this matter is what amount should be awarded for the
plaintiff as far as general
damages are concerned. It is clear
from the aforesaid that the plaintiff
is a 33 year old male who was a bricklayer at the time of the
accident. His injuries have
left him unemployable in the open
market. He has suffered a severe brain injury with permanent brain
damage. He had a lengthy
period of impairment of consciousness and
long duration of post-traumatic amnesia. He had punctate
intracranial haemorrhages.
He has severe headaches. He has a base
of skull fractures, with loss of vision in the left eye and loss of
hearing in the right
ear. He remains markedly symptomatic with
regards to his axial skeleton. He has soft tissue injuries to his
cervical and thoracic
spine, left shoulder, left hip and left knee.
He has soft tissue injuries to his cervical and thoracic spine. He
has symptoms
and signs of an impingement on his left shoulder and
symptoms and signs a soft tissue injury with internal derangement of
the left
knee. On the left hip, he has symptoms and signs of
trochanter bursitis. His amenities have been negatively affected.
He can
no longer play soccer and has a difficulty with heavy,
physically demanding duties in and around the home.
16. The plaintiff is seeking
compensation of R1 050 000.00 general damages. The defendant
referred this court to a number of out
dated cases and contended that
the plaintiff should be compensated R600 000.00. For some strange
reason, he did not refer to the
most recent cases dealing with the
type of injuries that the plaintiff has sustained. I was referred to
a number of cases by the
plaintiff where for a similar type of
injuries the compensation that was awarded in today’s current
value would be anything
between R900 000 and R1 000 000.00. In most
of the cases that I was referred to the plaintiff suffered
severe brain injuries but with deafness
in the one ear and blindness in one eye.
So for example in Dlamini v Road
Accident Fund 2012 (6A4) QOD 68 (GSJ), the plaintiff a 37 year old
male, also sustained a brain
injury, fractured mandible, loss of
teeth, soft tissue injury to the cervical and lumber spine. He was
hospitalised for 3 months
after the incident and was left with
neuropsychological sequelae because of the brain injury. He was no
longer suitable for employment
in the open labour market and was
awarded general damages in 2012 of R850 000 which equates to R955 000
in 2014. In Torres v Road
Accident Fund 2010 (6A4) QOD 1 (GSJ), the
plaintiff a 24 year old male, 20 years at the time of the accident,
also sustained a
severe diffuse brain injury, soft tissue injury to
the neck, face and chin. He has significant neuro-cognitive and
neuro behavioural
deficits associated with concentration, working
memory, impulse control and abstract reasoning. He has depression
and adjustment
disorder. In 2010 he was awarded R600 000 for general
damages which in 2014 equates to R931 000.00.
17. I have considered the cases that I
have been referred to. In determining quantum for general damages, I
am required to exercise
a broad discretion to award what I consider
to be fair and adequate compensation. In so doing, I must consider a
broad spectrum
of facts and circumstances connected to the plaintiff
and the injuries suffered by him, including their nature, permanence,
severity
and impact on his life. I have also taken into account that
he is blind
in the one eye and deaf in another ear.
18. In my view, in the light of the
cases that I have been referred to and based on the medical and
expert reports, an appropriate
award for general damages would be R1
000 000.00.
19. In the circumstances I make the
following order:
19.1 The defendant is to pay the
plaintiff the sum of R1 000 000.00 as general damages.
19.2 The amount referred to above is
payable on or before 5 October 2014 into the Trust account of the
plaintiff’s attorneys
of record with the following details
Wim Krynauw Attorneys
ABSA – Trust account
ACC No: 4………………
Ref: TM2681/W………..
P………
19.3 The defendant shall pay the
plaintiff’s taxed or agreed party and party costs on the High
Court scale, which costs shall
include:
19.3.1 The costs attendant upon the
obtaining of the medico-legal reports and/or preparation fees if any
and as allowed by the Taxing
Master.
19.4 In contingency fee agreement
entered into between the plaintiff’s attorney and the plaintiff
is declared invalid.
10.
19.5 The plaintiff’s attorney
shall only be entitled to recover from the plaintiff such fees as are
taxed or assessed on an
attorney and client basis. The fees
recoverable are not to exceeed 25% of the amount awarded or recovered
by the plaintiff.
19.6 The sum of R1 000 000.00 is to be
paid into the Trust which was established in 2013 for the benefit of
the plaintiff to assist
him to manage his affairs.
FRANCIS J
HIGH COURT JUDGE
FOR PLAINTIFF : A LOUW INSTRUCTED
BY KRYNAUW ATTORNEYS
FOR DEFENDANT : R KAY INSTRUCTED BY
MAYAT, NURICJ & LANGA ATTORNEYS
DATE OF HEARING : 2 SEPTEMBER 2014
DATE OF JUDGMENT: 8 SEPTEMBER 2014