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[2018] ZAGPJHC 43
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K obo K v Road Accident Fund (06274/2015) [2018] ZAGPJHC 43 (9 March 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE:
06274/2015
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
DATE: 09/03/2018
In
the matter between:
R.
A. K.
Obo
K.
K.
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
TWALA
J
[1] The plaintiff sued
the defendant in his representative capacity as father and natural
guardian for damages arising out of a
motor vehicle accident in which
his son, K. K. (K.), born on the […] 2001, was injured. K. was
a passenger in motor vehicle
with the registration number [T...] on
the 25
th
of December 2011 when it collided with another
vehicle described as [V...].
[2] At the commencement
of the hearing, the parties submitted a stated case only on general
damages since they had agreed to settle
all other heads of damages as
follows:
a)
The defendant is liable to compensate the
plaintiff for 100% of the proven otherwise agreed damages of the
minor child K. K. born
on [...] 2001;
b)
The defendant is liable to pay the plaintiff a
sum of R6 018 274 for loss of earnings;
c)
The defendant to issue a section 17(4)
undertaking in terms of the Road Accident Fund Act, Act 56 of 1996
(as amended) for the future
medical and related expenses in favour of
K. K..
[3] It is common cause
between the parties that K. sustained a severe traumatic head injury
described by the experts as follows:
“
he had a
Glascow Comma Scale of 6/15 when he was admitted to hospital and was
intubated. He was admitted to the ICU and still had
amnesia. The
CT-scan of the brain confirmed significant injures; ‘frontal
skull fracture, base of skull fracture, left blow
out fracture’.
He had a right hemiparesis and underwent occupational therapy and
speech therapy. He has completely lost sight
in his left eye. The
risk of developing epilepsy is at 5-10 %. He suffered a cervical
spine injury associated with the head injury.
He has suffered a
lumbar spine scoliosis.
The sequelae: he has a
global intermittent headache which is fobbing. The headache is
relieved by analgesia. The cervical and lumbar
spine is treated with
physiotherapy and anti-inflammatory agents.”
[4] Counsel for the
defendant contended that although the defendant conceded to pay the
plaintiff for the total loss of earnings,
the Court should not
consider the head of general damages in isolation. It is the
injuries, so the argument goes, that K. sustained
in the accident
which made him totally unemployable-hence the settlement of the loss
of earnings. It is further contended by counsel
that, in determining
the award for general damages, the Court should not adopt a
compartmentalised approach. The Court should not,
it is argued, treat
each injured part of the body separately.
[5] I find myself in
disagreement with counsel’s contention. General damages are a
head on their own. The agreement between
the parties that the
defendant is liable to pay 100% of the loss of earnings to be
suffered by K. is a separate head of damages
which has no bearing on
general damages. The inescapable conclusion to draw from the
circumstances of this case is that K. is totally
unemployable as a
result of the injuries he sustained in the accident. For the injury
to render somebody totally unemployable,
it must be a severe injury.
[6] Therefore, I hold the
view that the injuries K. sustained in the accident are of a severe
nature and sequelae. In considering
the award for general damages in
this case, I am of the considered view that it will prejudice K. if
the general damages were to
be considered together with the award of
loss earning. The claim for loss of earnings was a separate head
altogether in this instance
since K. was not suing for diminished
earning capacity but total loss of earning capacity.
[7] I am in agreement
with counsel for the defendant that the head of damages should not be
treated in a compartmentalised fashion
but to be treated as one in
the award of damages. It cannot be said that the injured person
experienced more pain on one part of
the body than the other at the
same time.
[8] It is trite that
there is no fixed method of calculating an award of general damages.
It is therefore for the Court to exercise
its discretion judiciously
in determining the award for general damages. The Court has to take
certain factors into consideration
such as awards in comparable
cases, inflationary changes in the value of money and problems
arising from collateral benefits in
the exercise of its discretion.
Both the parties have referred me to a number of decisions regarding
the award of damages. However,
it is well established that no two
cases are similar in these situations and therefore each case must be
treated on its own unique
facts.
[9] 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 clear to me that the two sides are
far apart when the amounts they relied
upon are anything to go by.
The plaintiff seeks compensation of between R1.4 million to R1.5
million and the defendant suggests
R900 000.
[10] I concur and as far
as possible I am bound by the
stare decisis
in the observation
of the Supreme Court of Appeal in the case of
De Jongh v Du
Pisanie
2005 (5) SA 457
(SCA)
that,
“
the principle
remained that the award should be fair to both sides
– it must give just compensation to the plaintiff, but ‘not
pour
out largesse from the horn of plenty at the defendant’s
expense.”
[11] I am unable to
disagree with the decision in the case of
Nicholson v Road
Accident Fund [2012] ZAGPJHC 137
wherein it was stated that:
“
the
conservation and/or liberality of a judge should not play any role in
the determination of general damages. The awards of previous
cases
are but one of the consideration which a court should take into
account when considering the amount of damages to be awarded.”
[12] I choose not to list
all the cases I have been referred by the parties but will refer to
the case of
Mathys NO v Road Accident Fund 2013 (6A4) QOD 273
(GNP)
wherein the plaintiff suffered a severe brain injury with
minor orthopaedic injuries and was admitted in hospital with the GCS
of 10/15. He was awarded a sum of R556 000 in general damages.
However, this case is distinguishable to the present case where the
plaintiff who was 11 years old suffered a severe head injury,
cervical and lumbar spine injuries and was admitted in hospital with
the GCS of 6/10.
[13] In the case of
Bhekisisa Simon Dlamini v Road Accident Fund, case number 59188/13
(GNP) (date 03/09/2015)
wherein the plaintiff suffered a severe
brain injury, comminuted fracture of the mandible and other facial
injuries, the Court
awarded general damages in the sum of R1 350 000.
This case also differs from the present case since it has serious
orthopaedic
injuries. In casu, the plaintiff has a sequelae of losing
his balance when he walks. He is still at school and has not repeated
a grade after the accident although his performance is somewhat lower
than before the accident.
[14] I am satisfied that
K. suffered a severe traumatic head injury and is entitled to be
compensated fairly and reasonably. It
is my respectful view that a
sum of R1 250 000 is fair and reasonable in the circumstances of this
case.
[15] In the
circumstances, I make the following order:
a)
The draft order marked “X” annexed
hereto with the necessary amendments is made an order of Court.
_________________________
M
L TWALA J
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Date
of hearing:
23 February 2018
Date
of Judgment:
09 March 2018
For
the Plaintiff:
Adv. M Hugo
Instructed
by:
Mbowane Attorneys Inc
Tel: 012 430 2285
For
the Defendant:
Adv. M Kgomongwe
Instructed
by:
Mathipane Tsebane Attorneys
Tel: 011 265 9959