About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2017
>>
[2017] ZAGPJHC 61
|
|
D v Road Accident Fund (15/24390) [2017] ZAGPJHC 61 (3 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 15/24390
Reportable: No
Of interest to
other judges: No
Revised.
3/3/2017
In the matter
between:
D P
And
ROAD ACCIDENT
FUND
JUDGMENT
MAHALELO
A J
:
[1] The plaintiff
instituted an action against the defendant for damages arising from
certain bodily injuries which he sustained
in a motor vehicle
accident which occurred on 28 March 2012 along Maseru Road in
Meadowlands, Soweto.
[2] At the time of
the accident the plaintiff was a pedestrian crossing the street when
he was hit by the unidentified insured motor
vehicle from behind.
[3] The issues in dispute with regard
to the plaintiff’s claim were:
3 1. future
medical expenses;
3.2. past and
future loss of earnings; and
3 3. general
damages.
[4]
The defendant has conceded the merits on a previous occasion, 80/20%
in favour of the plaintiff and both parties agreed
on the
amount of R278 522.00 in respect of loss of income both past and
future. With regard to future medical expenses the
defendant has
undertaken to provide the plaintiff with a certificate in terms of
section
17
(4) (a) of the
Road
Accident Fund Act, No. 56 of 1996
,
as amended.
[5]
The defendant’s counsel stated that there was no agreement on
general damages and that all issues relating to general
damages must
be proved in the normal manner and the defendant’ submission
was that the plaintiff did not suffer any
loss for general
damages. Consequently what remains to be determined is whether the
plaintiff qualifies for general damages and
the quantum.
[6]
The plaintiff commissioned various expert reports dealing with the
injuries he sustained and the
sequelae
thereof whilst the defendant did not commission any such reports. The
parties agreed that no evidence would be led in respect of
the claim
and that the evidence and opinions contained in the bundle of the
experts’ reports be placed on record as evidence.
The agreed
bundle of documents was handed in and admitted into the record as
exhibit “1”.
[7]
It was not in dispute that as a result of the accident, the plaintiff
sustained a fracture of the right femur, injury to the
right hip
(total hip replacement), abrasions on the right knee, concussive head
injury of a mild degree and an injury to mandibles.
It was equally
not disputed that the plaintiff was born on 21 September 1969 and
therefore 47 years of age at the time of the trial.
[8]
The plaintiff’s counsel took the court through the various
expert reports dealing with the plaintiff’s injuries,
the
sequelae
thereof and its impact on the plaintiff’s life
including the impact on the enjoyment of the amenities of his life,
as well
as its impact on his work capacity.
[9]
[9]
The issue of the plaintiff’s brain injury is of central
importance in this matter as it impacts directly on the plaintiff’s
claim. In this regard the various reports commissioned by the
plaintiff which stand as evidence in the trial deal with the head
injury as follows:
9.1 Dr L F
Segwapa, a neurosurgeon, states the following in his report dated 16
July 2015 about the plaintiff:
“
He
sustained a direct trauma to the craniofacial structures…There
are features of a mild concussive brain injury. He reports
memory
problems and poor concentration. He should undergo detailed
neuropsychological evaluation by the clinical psychologist to
determine the extent of his cognitive impairments.
”
The
report goes onto comment that the plaintiff lost amenities of normal
living as a result of the accident.
[10]
The report of Dr Von Bormann, an orthopaedic surgeon, dealt mainly
with the plaintiff’s hip injury and concluded that
the
plaintiff will permanently have a painful limp on the right side and
missing teeth. The report states further that, the plaintiff
had a
successful total hip replacement on the right side due to trauma.
Furthermore that both of his knees have post traumatic
patella-femoral arthropathy and the right ankle has aggravated post
degenerative osteoarthritis. According to Dr Von Bormann the
degenerative osteoarthritis of the plaintiff’s lower limbs have
been aggravated and the degeneration accelerated by the accident.
Dr
Von Bormann opined that the plaintiff will have to undergo a number
of surgical procedures in the future. These will include
at least one
revision of the total hip replacement on the right side and a total
right knee replacement. He deferred to the occupational
therapist and
clinical psychologist regarding the plaintiff’s employability
and the possibility of early retirement.
[11]
According to the report of the occupational therapist, Ms Tshukudu,
the plaintiff is not currently suited to perform tasks
which involve
extensive standing, walking, driving and balancing on his right leg.
She opined that the plaintiff meets sedentary
and light type of work
category where he will have to alternate between sitting and standing
to relieve pressure on the right hip.
According to her, the plaintiff
would probably be less competitive in the work environment due to the
injuries he sustained. She
concluded that the plaintiff will struggle
with the demands of being a security due to pain in the knees and
right hip and his
level of productivity is compromised.
[12]
Neuro- psychologist, Ms Grootboom conducted a range of tests on the
plaintiff. She concluded that the plaintiff’s cognitive
profile
is consistent with mild brain injury and that the plaintiff has been
left with relative deficits in certain areas of cognitive
functioning. She did, however also indicated in her report that this
is possibly reflective of the plaintiff’s premorbid
cognitive
functioning which was likely compromised. According to her, the
psychological assessment results reveal that the plaintiff
is not
suffering from significant depressive symptoms but that he still
seems to experience residual emotional symptoms, including
unprocessed anger towards the driver of the motor vehicle involved in
the accident as well as situational anxiety.
[13]
Mr Shaik, the industrial psychologist undertook assessment of the
plaintiff and concluded that the plaintiff’s employment
and
earning opportunities have been negatively affected as a result of
the injuries he sustained in the accident. Further that
the plaintiff
now faces occupational limitations and the capacity to work to his
full potential has been compromised by the accident.
According
to Mr Shaik, considering the plaintiff’s injuries and the
negative impact on his occupational functioning,
the plaintiff will
be rendered a vulnerable individual in the open labour market.
[14]
When one has regard to all the reports I have referred to then one
must accept in favour of the plaintiff that he suffered
a head injury
which was in the nature of a mild concussive injury. According to the
report of Ms Grootboom the plaintiff has been
left with relative
deficits in certain areas of cognitive functioning. However in this
regard the plaintiff’s premorbid cognitive
functioning was
likely compromised. The plaintiff was psychologically vulnerable
prior to the accident and according to Ms Grootboom
the accident and
the injuries he suffered exacerbated his pre- morbid vulnerabilities.
[15]
The plaintiff’s disability, as it emerged from the various
medico-legal reports, is a consequence of the combined effect
of the
orthopaedic injuries and psychological conditions. Ms Tshukudu opined
that the plaintiff will struggle with the demands
of being a security
and that she does not believe that the plaintiff will be competitive
in that kind of work in the future. She
concludes however that from a
purely physical perspective the plaintiff has not been rendered
unemployable. In her opinion the
plaintiff is not currently suited to
perform tasks which involve extensive standing, walking, driving and
balancing on his right
leg. She opined that the plaintiff meets
sedentary and light type of work category where he will have to
alternate between sitting
and standing to relieve pressure on the
right hip. She recognises that the plaintiff continues to experience
pain in the knee and
the right hip.
According
to Dr Mogotsi who completed the serious injury assessment report the
plaintiff suffered 34% WPI (Whole Person Impairment).
The impairment
has been rated using the 6
th
edition of the AMA guide CW5
MSCHIF.
GENERAL
DAMAGES
[16]
There is no doubt that the plaintiff sustained a concussive brain
injury and various orthopaedic injuries of some significance
as
stated by the orthopaedic surgeon. The orthopaedic surgeon opined
that the plaintiff will have to undergo a number of medical
procedures in the future. Further that these procedures will include
at least one revision of the total hip replacement on the
right side
and a total right knee replacement. The plaintiff regained his
consciousness at the scene of the accident. He was conveyed
by
ambulance from the scene of accident to the hospital where he was
admitted for three weeks. After the accident he is now a changed
person with continuous physical complaints. He faces the real
prospects of pain and surgical procedures as well as some physical
disability. All the experts are agreed that the plaintiff should be
compensated for the injuries he sustained in the accident.
For all
the reasons stated above the plaintiff now has to be compensated
adequately and fairly in the form of general damages.
[17]
In determining general damages the court is called upon to exercise
its discretion to award what it considers to be fair and
adequate
compensation having regard to a broad spectrum of facts and
circumstances connected to the plaintiff and the injuries
sustained
by him including their nature, permanence, severity and their impact
on his lifestyle.
[18]
In
Sandler v Wholesale Coal Supplies Ltd
1941 AD 194
at 199
the court held:
“
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”
[19]
That still remains the legal position.
There is no hard and
fast rule of general application requiring a court to consider past
awards. Such awards are seldom on all
fours with the facts of the
case under consideration.( See
Road Accident Fund v Marunga
2003 (5) SA 165
(SCA).
[20]
Based on the above principles I have endeavoured to assess what I
consider to be a fair compensation. I have also taken
into
consideration that whilst the plaintiff must be sufficiently and
properly compensated for the injuries he has suffered in
the
accident, the defendant should not be unnecessarily burdened with an
inordinately high award despite the recent tendency by
the courts to
pitch the awards higher than in the past.
De Jongh v
Du Pisanie NO
[2004] ALL SA 565
(SCA).
[21]
The injuries the plaintiff sustained and the
sequelae
thereof
have been stated above.
[22]
The plaintiff has claimed the sum of R900 000.00 whilst the
defendant argued that the plaintiff’s general damages
should be
assessed at R450 000.00 only. In this regard both have referred
me to various decided cases on the subject dealing
with past awards
made in comparable cases. Counsel for the plaintiff especially
referred me to the judgment in Hall v Road Accident
Fund 11330/2008
QD[ Vol VI] J2-126 [Service 6,2013] wherein the plaintiff , who
sustained a fracture of the left humerus,
fractured ribs on the left
side, a concussive head injury of a moderate degree, a left 6
th
cranial nerve lesion, soft tissue spinal injuries of the neck and
back was awarded an amount of R700 000.00 which translates
in
2016 to R866 000.00. I have had regard to such cases and they serve a
useful guide only.
[23]
Whilst there may be certain similarities between some of the cases
and the present, fact of the matter is each decision differs
on the
facts and the considerations raised therein from the present.
Past awards serve no more than to give some indication or guidance as
to what sort of awards are appropriate on the facts
of a particular
case. To the extent that guidance may be derived from these matters I
have given careful consideration to them.
There is no evidence of a
serious brain injury with permanent damage at issue in the present
matter. The plaintiff according to
the reports submitted is still
employable though in a precarious position.
[24] In my view the amounts suggested
by the parties' counsel are not reasonable. On a consideration
on all the facts of the
present matter and the previous awards made
in similar matters it is my considered view that an award of R600
000.00 in respect
of pain and suffering, loss of amenities of life,
disfigurement and disability is justified.
[25] In the result I make the
following order:
25.1 The defendant shall pay to the
plaintiff the amount of R222 817.60 (Two Hundred and Twenty Two
Thousand Eight Hundred
and Seventeen Rand and Sixty cents) in respect
of the plaintiff’s past and future loss of earnings;
25.2 The defendant shall pay to the
plaintiff the sum of R600 000(Six Hundred Thousand Rand) general
damages for pain and suffering
as well as general amenities of life;
25.3
It is recorded that defendant undertakes in terms of
Section 17(4)
of
the Road Accident Fund, 56 of 1996 to furnish the plaintiff with 80%
of the costs of any future accommodation of the plaintiff
in a
hospital or nursing home as well as the treatment of and/or rendering
of a service to him or supplying of goods due to the
injury sustained
by him in the accident and the
sequelae
thereof after such costs have been incurred and upon proof thereof;
25.4
The
defendant is ordered to pay interest on the amounts as set out in
paragraphs 25.1 and 25.2 above at the prescribed legal rate
from a
date 14 days after the date of this judgment to date of payment;
25.5 The defendant is ordered to pay
the plaintiff’s costs of suit including the qualifying
expenses, if any, of the
following experts:
1.
Dr P F B Von Bormann
2.
Dr Craig Pearl
3.
Dr L F Segwapa
4.
Ms L Grootboom
5.
Ms E M Tshukudu
6.
Mr Z Shaik
7.
Algorithm Consultants &
Actuaries
M B MAHALELO
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances:
Counsel for the plaintiff: Adv
Lufele
Instructed by:
NT
Mdlalose Incorporated
Counsel for the defendant: Adv
Smit
Instructed by:
Borman
Duma Zitha Attorneys
Date of hearing:
6 December 2016
Date of judgment:
3 March
2017