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[2019] ZAGPJHC 113
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Myhill NO obo T B v Road Accident Fund (2010/13353) [2019] ZAGPJHC 113 (27 March 2019)

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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO
:
2010/13353
DATE
:
27
TH
march 2019
In the matter between:
MYHILL
,
ADVOCATE ERIC N O,
in his capacity as
Curator ad Litem
for and on behalf of:
B
,
T
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
ADAMS
J
:
[1].
The plaintiff, in his
representative capacity as
Curator
ad Litem
for and on behalf of the T B (‘the patient’), claims
delictual damages from the defendant in terms of the provisions
of
the
Road Accident Fund Act, 56 of 1996
, as amended (‘the Act’).
The patient’s damages arise as a result of personal injuries
sustained by him in a pedestrian
vehicle collision which occurred on
the 9
th
of July 2009 in Jan Hofmeyer, Johannesburg, Gauteng (‘the
collision’).
[2].
The patient, whose
date of birth is the 5
th
of January 2001, was 8 years old at the time of the accident, and he
in essence sustained a moderately severe concussive head injury,

consisting of a fracture of facial bones, a fracture of the spine (a
C7 transverse process fracture) and abrasions of the both
knees.
Immediately after the accident, he was admitted to and conservatively
treated at the Charlotte Maxeke Hospital in Johannesburg.
On his
admission to the hospital, his Glasgow Coma Scale was assessed at
15/15. He was hospitalized in total for a period of four
days until
his discharge on the 13
th
of July 2009. His age at present is 18 years. Prior to the accident,
the patient experienced serious neurocognitive ‘challenges’

and by all accounts his neuropsychological development was way below
the rate expected.
[3].
The issue of the
merits / negligence was previously resolved between the parties on
the basis of a full concession of liability
by the defendant in
favour of the plaintiff. This means that the defendant has accepted
liability for 100% of the damages suffered
by the patient as a result
of the injuries sustained by him in the accident. The patient’s
loss of earnings and his future
hospital and medical expenses have
also been resolved.
[4].
As far as future
hospital and medical expenses are concerned, the defendant on the
15
th
of March 2018 furnished the plaintiff with an unlimited statutory
Undertaking in terms of the provisions of
section 17
(4) (a) of the
Act. The said Undertaking covers the patient in respect of 100% of
future hospital, medical and related expenses
incurred by the
plaintiff. Part of the relief now claimed on behalf of the plaintiff
relates to this statutory undertaking and
its implementation in
practice. I shall revert to this aspect of the matter in due course.
[5].
The plaintiff has no claim for past
hospital and medical expenses. The reason for this is that on the day
of the collision and immediately
thereafter the patient was admitted
to and received treatment from a Government Hospital and he was not
required to pay for the
medical treatment received by him from the
Government Hospital.
[6].
I am required to adjudicate the last
outstanding issue relating to the plaintiff’s claim, that being
the quantum of the plaintiff’s
general damages. In addition,
the plaintiff requires me to order the defendant to pay to the
plaintiff an amount equal to the capitalised
sum relating to the cost
of caregiving services, ‘additional transport costs’,
school fees and the costs for a
Curator
ad Personam
’.
[7].
I shall deal
with the latter aspects of the matter first. The plaintiff prays for
an Order that the defendant furnishes to the plaintiff
an amended
Undertaking. The plaintiff also asks for a declaratory order to the
effect that the defendant is liable retroactively
from the date of
the accident, being the 9
th
of July 2009, to the
de
facto
caregiver of the patient, Ms L P, in an amount of R7 000 per
month, supposedly being the reasonable expenses relating to the

necessary caregiving services rendered to the patient by Ms P. Once
Ms P is no longer able to care for the patient, then, so the

plaintiff prays, the defendant should be ordered to pay directly to a
private caregiving facility, the Avril Elizabeth Home in
Germiston, a
monthly residential fee of not less than R7 500 per month, being
in respect of the accommodation of the patient
at such private care
facility. Furthermore, the plaintiff prays for an order that
defendant pays to the plaintiff the additional
transport costs,
described by the plaintiff as the patient’s ‘life –
long additional reasonable transport costs
incurred as a result of
his injuries in the accident and sequelae thereof’. Lastly, the
plaintiff asks for an order that
the defendant pays to the
Curator
ad Personam
his fees which are at present due and payable by the defendant. The
defendant opposed this relief claimed primarily on the basis
of the
decision by the SCA in the matter of
Road
Accident Fund v Mphirime
,
[2017] ZASCA 14
, and the wording of the
section 17(4)
Undertaking
given by the defendant to the plaintiff in the context of the
relevant legislation.
[8].
A good
starting point in dealing with the relief claimed by the plaintiff is
the relevant portions of the previous orders granted
by this court.
On the 31
st
of October 2014 an order was granted by Ndamase AJ
inter
alia
in
the following terms, by agreement between the parties:
‘
1.
The Defendant is to pay within 14 days of the granting of this order
into the trust account of the plaintiff's attorney of record
the
amount of R1 000 000 (One Million Rand) being the quantum
of the future loss of income suffered by the minor child
T B ("T")
as a result of the injuries T sustained in the accident which forms
the subject matter of the action under
the above case number,
together with interest thereon at the rate of 9% per annum calculated
with effect from the 14th day after
the granting of this order to
date of payment.
2.
… …
3.
Once this Honourable Court has made the order envisaged in paragraph
2.3 above, then the Plaint's attorney shall pay over to
the aforesaid
Curator Bonis
, Trustee or other appointed entity the full
amount of R1 million, less the taxed or agreed costs as between T and
plaintiff's attorney
on the scale as between attorney and own client,
and as between T and the
Curator ad Litem
on the scale as
between attorney and own client.
4.
The Defendant shall pay the Plaintiff's taxed or agreed party and
party costs up to and including 31 October 2014, on the High
Court
scale, which costs shall include the costs attendant upon the
obtaining of reports and addendum reports of all expert witnesses

instructed by the Plaintiff as well as the qualifying fees of Dr S
Wolberg and Ms R Ancer, as well as the costs of an attorney,
and
costs of the plaintiff's counsel as allowed by the Taxing Master.
5.
… …
7.
The trial of the question of general damages is postponed
sine
die
’
[9].
On the 16
th
of July 2015, this Court (Coppin J) granted an order
inter
alia
in
the following terms:
‘
1.
The social worker Mr John G I Clarke of […] C Road,
Blairgowrie is hereby appointed as
Curator
ad Personam
to the minor child T B ("T").
2.
… ….
3.
Applicant's Attorney of Record, Mr Johan van der Elst of Van der Elst
Inc is directed forthwith to procure the formation of a
Trust, which
is to be administered for T’s benefit for the remainder of T’s
lifetime.
4.
The trust is to bear the name "T B Trust".
5.
… …
12.
The
Curator ad Personam
is to stay abreast of T’s
circumstances and the changes therein, and is to keep the Trustee
informed of such circumstances
and changes so as to enable the
Trustee to make informed decisions from time to time regarding the
investment and expenditure of
T’s funds in T’s best
interests.
13.
… …
16
The
Trustee's remuneration in respect of capital and interest is to be
limited to the percentages prescribed from time to time in
terms of
the
Administration of Estates Act 66 of 1965
as amended and the
Regulations thereto.
17.
The costs of giving effect to the terms of this order are to be borne
by the Road Accident Fund, including the reasonable remuneration
to
be charged by the Trustee and the
Curator ad Personam
and all
disbursements necessary for the formation and administration of the
Trust’.
[10].
Pre –
morbid the patient was experiencing some serious neurocognitive
deficits. He was born to biological parents who engaged
in narcotic
and other substance abuse. After the birth of the patient and when he
was five months old, his biological mother left
him in the care of
her mother. And so started the life of a little boy, who did not have
it easy from the beginning. He lived with
his grandmother and her
life partner, Ms L P, until her death during 2011, whereafter Ms P
took him under her wing. He is
at present still in the care of Ms P.
[11].
By all
accounts the patient struggled academically from an early age. He had
serious neurocognitive difficulties, and he was required
to repeat
grade one at age six. At the request of his teacher, he was
thereafter moved into a remedial class after his intellectual

challenges became evident. During that time and notwithstanding his
neurocognitive challenges, the patient remained in the care
and
stayed with his grandmother and Ms P, without any special care, in a
three bedroom residence. The accident occurred when plaintiff
was
eight years old.
[12].
As indicated
above, during 2014 the defendant was ordered to pay to the plaintiff
an amount of R1 million in respect of the future
loss of earnings of
the patient. The plaintiff was subsequently furnished with a
statutory undertaking in respect of future hospital,
medical and
related expenses. During 2016, when the matter was again on the trial
roll for adjudication of the quantum of the plaintiff’s
general
damages, which was the last outstanding issue in dispute between the
parties at that stage, the plaintiff amended his particulars
of claim
and increased the claim to approximately R15 million, which
incorporated the lump sum payments relating to special caregiving
and
educational costs and additional transport costs.
[13].
Post –
morbid the patient presents with serious intellectual impairment,
which is attributable to the accident. That is so
despite the fact
that pre – morbid he had neurocognitive impairments. He also
suffers from chronic headaches and it is accepted
that these are post
traumatic in nature.
[14].
The defendant
opposed the relief sought by the plaintiff firstly on the basis that
by the defendant furnishing the plaintiff with
the
section 17
Undertaking, all of the following issues had been concluded: the cost
of special education, additional transport costs, medical
and
medically related costs; and the costs relating to the patient being
placed in a special private care facility, as against
a government
care facility. It is the case of the defendant that this matter and
the aforegoing issues were concluded and settled
as soon as the
defendant furnished the
section 17
Undertaking. This is so, according
to the defendant, if regard is had to the provisions of
section 17
,
read together with
section 19.
[15].
Section 17(4)
provides as follows:
‘
17(4)
Where a claim for compensation under subsection (1) -
(a)
includes
a claim for the costs of the future accommodation of any person in a
hospital or nursing home or treatment of or rendering
of a service or
supplying of goods to him or her, the Fund or an agent shall be
entitled, after furnishing the third party concerned
with an
undertaking to that effect or a competent court has directed the Fund
or an agent to furnish such undertaking, to compensate
-
(i)
the third party in respect of the said costs after the costs have
been incurred and on proof thereof; or
(ii)
the provider of such service or treatment directly.
in
accordance with the tariff contemplated in subsection (4B);
… …
(4B)(a)
The liability of the Fund or an agent regarding any tariff
contemplated in sub-section (4)(a) shall be based on the tariffs
for
health services provided by public health establishments contemplated
in the National Health Act, 2003 (Act 61 of 2003), and
shall be
prescribed after consultation with the Minister of Health.’
[16].
In
Mbele
v Road Accident Fund
,
(799/15) [2016] SCA 134, the SCA, with reference to the provisions of
section 17(4), had this to say:
‘
A
complete cause of action in respect of future medical claims covered
by an undertaking must arise when the costs are incurred.
In terms of
s 17(4)(a)(i) of the Act, the Fund is only obliged to compensate the
third party in respect of the costs “after
the costs have been
incurred and on proof thereof”. In addition, the Fund is only
obliged to compensate the third party for
the reasonable costs of the
defined medical expenses, which may not necessarily be their actual
cost. (See
Marine
& Trade
supra at 972). If the Fund declines to pay the medical costs claimed,
the third party will have to institute action within five
years of
the complete cause of action arising, being the date when the costs
were incurred. A complete cause of action cannot arise
as at the time
of the accident, in respect of future medical expenses covered by an
undertaking, as these costs have not yet been
incurred.’
[17].
The liability
of the Fund to a third party (the injured) is to compensate a
plaintiff for ‘loss or damage’. The liability
is created
by an obligation imposed on the Fund under section 17(1). In respect
of future medical expenses, the claimant can thus
only claim for loss
or damages. Prior to the introduction of the Undertaking, a court
hearing an action for such loss or damages,
had to apply the ‘once
and for all’ principle. This obliged courts to award there and
then and consequently to assess
and quantify, in one and the same
proceedings, any claim proved to have been suffered by the plaintiff.
[18].
Under section
17(4)(a) (Undertaking), damages are paid as damages eventuate.
Section 17(4)(a) must be interpreted against this background.
Its
purpose is to solve the quantification problem, nothing more. From
the wording of the section, the Undertaking may be issued
where a
claim for compensation from the Fund includes a claim for costs for
future accommodation in a hospital or nursing home,
or costs of
treatment or of rendering a service or costs of supplying goods to
the injured arising from injuries. The claim therefore
is essentially
one for costs. It is a claim for payment and not for performance of
an obligation.
[19].
The defendant
therefore submitted that that is the claim which a claimant must be
satisfied with in terms of the Undertaking. Only
the Fund may elect
either to pay the costs claimed, future hospital and medical
expenses, or to furnish an Undertaking in lieu
of payment. It is the
case of the defendant that the Undertaking was given to plaintiff on
or about the 15
th
March 2018.
[20].
The relevant
portion of the Undertaking given by the defendant in terms of section
17(4) to the plaintiff on the 15
th
of March 2018, reads follows:
‘
The
Fund's liability to compensate the Injured for future accommodation
in a hospital or nursing home or treatment of or rendering
of a
service or the supplying of goods to the Injured, which are incurred
as a result of the injuries that the Injured sustained
in the
collision is limited to the tariff or tariffs in force under the Act
from time to time, and in lieu of such a tariff or
tariffs, to the
necessary and reasonable costs incurred by the Injured as a result of
the injuries sustained in the accident …’
[21].
Despite the
absence of tariffs, defendant has made provision for ‘necessary
and reasonable costs’.
[22].
I am of the
view that the relief sought by the plaintiff and the bases for such
relief are not sustainable. The plaintiff’s
claim for the cost
of special education and the related charges has been met by the
section 17(4) Undertaking. The plaintiff cannot
have another bite at
the proverbial cherry by now asking for a declaratory order relating
to the undertaking. Additionally, the
plaintiff is also not entitled
to claim lump sum payments for past and future expenses. This flies
in the face of the wording of
section 17(4).
[23].
In that
regard, Ms Shaik – Peremanov, Counsel for the defendant,
referred me to the matter of
Road
Accident Fund v Mphirime (supra).
In
that case, the SCA rejected a claim by a plaintiff to be compensated
in a lump sum for the employment of a domestic helper. The
Fund, so
the SCA held, was fully within its rights to deal with that claim by
furnishing a section 17(4) Undertaking.
[24].
The section
17(4) Undertaking suffices to cover future accident medical and
medically related expenses as and when they arise, as
was espoused by
the SCA in the
Mphirime
judgment at paras [7] and [8] as follows:
‘
[7]
And to that purpose, such provisions were put. Undertakings were
given not only in respect of future hospital or medical expenses,
but
also, for example, in respect of the services rendered by a
curatrix
bonis
,
and the appointment of an assistant to assist an injured farmer in
his farming enterprise. This was done under the aegis that
such an
undertaking related to ‘the rendering of a service’ as
envisaged in the relevant legislation. It is accepted
by both sides
that until 1 August 2008, the costs occasioned by an injured
party employing a domestic assistant were capable
of being dealt with
in this way.
[8]
Until then s 17(4)(a) of the Act had been in terms similar to those
already mentioned, authorising the Fund to give an undertaking
to the
injured claimant in respect of ‘the costs of the future
accommodation . . . in a hospital or nursing home or treatment
of or
rendering of a service or supplying of goods . . .’ However, on
that date,
s 6
of the
Road Accident Fund Amendment Act 19 of 2005
came into effect. It amended
s 17
to provide, inter alia, the
following … …’
[25].
The issue that
arose for determination in
Mphirime
was whether the state of the law at the time allowed the appellant,
the Fund, to discharge its liability to pay for the costs of

employing a domestic worker required by an injured claimant by
issuing a
section 17(4)
Undertaking. The court
a
quo
in
that matter had held that pursuant to the amendment of the Act by the
Road Accident Fund Amendment Act 19 of 2005
, it was no longer
competent for the Fund to do so.
[26].
On appeal
Leach JA (Tshiqi, Majiedt and Mathopo JJA and Ploos van Amstel AJA
concurring) held as follows:
‘
In
consequence of the so-called “once and for all principle”
of the common law, a court is generally obliged to determine
all
items of a plaintiff's loss, both past and future, in the same
proceeding. In respect of future losses, the assessment of loss
is
often speculative involving, as it does. “a prediction as to
the future without the benefit of crystal balls, soothsayers,
or
oracles”. As the Court (the SCA) stated in
Anthony
& another v Cape Town Municipality
“(w)hen it comes to scanning the uncertain future, the court is
virtually pondering the imponderable, but must do the best
it can on
the material available, even if the result may not inappropriately be
described as an informed guess ' As a result, the
process of
calculating future loss may obviously result in an award potentially
to the substantial prejudice of one side or the
other.’
[27].
The SCA
accordingly rejected the plaintiff’s contention for a lump sum
payable up front, holding that there was no merit in
the plaintiff’s
argument. The SCA found as follows:
‘
Section
17(4)(a)
states that the Fund “shall be entitled . . . to
compensate” by way of furnishing an undertaking. No provision
is made
for a claimant to refuse such an undertaking should the Fund
exercise its right to do so. The appeal must therefore succeed.’
[28].
I am bound by
the decision of the SCA. In any event, I find myself in agreement
with the findings of the Appeal Court and its reasoning.
Accordingly,
I reiterate my view that the plaintiff’s claim for lump sum
payments and for declaratory orders to that effect
is legally unsound
and not sustainable.
[29].
The reasonable expenses incurred by the
plaintiff, as sequelae to the accident, are covered by the
section
17(4)
Undertaking. Consequently, all the plaintiff has to do is
tender its reasonable medical and medically related invoices upon the

materialisation of the sequelae to the defendant for consideration
and payment. T
here is
no further liability on the part of the defendant save for the
section 17(4)
Undertaking.
[30].
I am therefore of the view that the
plaintiff has failed
to establish, as he was required to do in order to found liability
for the relief claimed, that he is entitled,
in law, to an
declaratory order in respect of payment of educational costs arising
from the accident,
that he
is
entitled, in law, to additional transport costs on a capitalised sum
for past expenses and a declaratory order relative to future
charges,
arising from the accident; that he is legally entitled to recover the
cost of caregiving services as provided by Ms L
P, which monetary sum
is to be paid on a capitalised sum basis; that the patient is
entitled, in law, to private care facilities
for disabled /
handicapped persons as opposed to State owned care facilities.
[31].
I say so for
the reasons submitted by Ms Shaik – Peremanov, namely that the
claims under these headings are finally addressed
in this action by
the defendant furnishing the plaintiff with a
section 17(4)
Undertaking. In that regard, I have also had regard to the judgment
in the
Mphirime
matter and the legal principles enunciated therein by the SCA.
[32].
I reiterate
that, as regards educational expenses, and whether or not the
plaintiff is entitled to be reimbursed for those, should
be dealt
with as a claim under the
section 17(4)
Undertaking. Future
educational expenses will be paid as and when they arise. The
position at present is that the patient is at
a Government
institution, the Eureka School, which adequately caters for all of
the educational needs of the patient. The education
is provided at
the expense of the State and the plaintiff therefore has no claim at
present under this heading. In any event, this
is an amount to be
claimed under the
section 17(4)(a)
Undertaking, provided same is
necessarily and reasonably incurred.
For
as long as the patient attends the Eureka School, his psycho –
social needs will continue to be met by his contact with
his teachers
and fellow learners. He feels that he belongs there. His fellow
learners are also mentally impaired and he feels accepted
and
emotionally safe there.
[33].
The plaintiff
has also not made out a case for a declaratory order that the patient
has the right to be placed at a private education
institution and
that the Fund will be liable for the cost relating thereto. This is
in keeping with the wording of the
section 17(4)
Undertaking and the
SCA judgment in the
Mphirime
matter.
[34].
The same applies to the claim by the
plaintiff for the charges of Ms P for the caregiving of the
patient, which she does out
of a sense of ‘family’ and
because she was asked to do so by the patient’s grandmother on
her deathbed. In my
judgment, this is a claim to be dealt with based
on the
section 17(4)
Undertaking and which would require
considerations relating to the necessity and reasonableness of these
charges. Again, these
are expenses which can and should be claimed by
the plaintiff, provided they are necessary and reasonable, only after
they have
been incurred. The plaintiff is most certainly not entitled
to a declaratory order that the Fund should pay to the plaintiff an

amount of R7 000 per month in respect of Ms P’s charges.
Such an order should be preceded by an in – depth inquiry
into
the necessity and the reasonableness of these payments to Ms P in the
light of the availability of caregiving provided at
State facilities
at the expense of the State. The claim by Ms P, in any event, appears
to me to be wholly artificial in the light
of her own evidence that
she is taking care of the patient, at the resident previously owned
by the patient’s grandmother,
because of the affection she has
for the patient.
[35].
The same principle applies to the claim by
the plaintiff for an order that the patient be taken care of at a
private care facility
as against a State facility. The plaintiff is
not entitled to such an Order if for no other reason the fact that
the reasonableness
of such an expense has not been demonstrated by
the plaintiff. As was rightly pointed out by Counsel for the
defendant, by definition
and generally speaking caregiving services
by a ‘family caregiver’, as is the case in this matter,
do not attract any
costs. I can find very little fault with the
defendant’s insistence that, if Ms P does not want to provide
further caregiving
to the patient, he should become a ward of the
State.
[36].
As far as additional transport costs are
concerned, the above principles apply equally. These charges are
covered by the
section 17(4)
Undertaking and are payable by the Fund
after they had been incurred. Considerations relating to necessity
and reasonableness would
dictate whether or not the Fund is liable to
pay the amounts expended by the plaintiff under this head of damages.
[37].
It is also the Defendant’s case that
additional transport costs are not covered by the
section 17
(4)
Undertaking save for those transport costs incurred in transporting
the patient for medical needs, physiotherapy, psychotherapy
and
occupational therapy insofar as they relate to injuries sustained in
the accident under discussion. This contention, as I have
indicated,
relates to whether or not the expenses are necessary and reasonable
all things considered. All medical and medically
related transport
costs which are a direct result of the accident will be reasonably
covered within the ambit of the
section 17(4)
Undertaking. If not,
the plaintiff would not, in my view, be entitled to recover those
costs.
Plaintiff’s submissions re
Caregiving Services & Additional Transport Costs
[38].
It is the plaintiff’s case that the
main issue which I am required to determine is the extent of Fund’s
liability to
compensate a brain – injured road accident victim
– other than for loss of income, medical expenses and general
damages.
As I have indicated above, all of these additional damages
now claimed by the plaintiff on behalf of the patient form part and
parcel of the
section 17(4)
Undertaking furnished by the defendant to
the plaintiff during May 2018. I am therefore not persuaded that this
case is about quantifying
the plaintiff’s additional heads of
damages. I elaborate on my reasoning hereafter.
[39].
During the hearing of the matter, Ms
Goodenough, who appeared on behalf of the plaintiff, indicated that
the plaintiff accepts,
rightly so in my view, that the Court should
declare that caregiving costs and additional transport costs are
indeed covered by
the
section 17(4)
Undertaking. It was therefore
accepted by the plaintiff that the Fund only has to pay these
expenses as and when they are incurred.
These concessions are, in my
judgment correctly made and, in any event, accord with the findings
supra
. For
the reasons elaborated above the plaintiff is not entitled to a lump
sum payments in respect of his claim for the past cost
of caregivers
and the additional transport costs. The plaintiff is also not
entitled to declaratory orders for future expenses
relative to
caregiving and additional transport. I believe that I need say no
more than to refer to the
ratio
decidendi
in the
Mphirime
matter.
[40].
It is the plaintiff’s case that the
patient should be placed in the privately funded Avril Elizabeth Home
in Germiston (or
an equivalent private establishment), to whom RAF
should pay R7 500 per month and that the State is incapable of
providing reasonable
or appropriate care facilities for the patient.
Therefore, so it was argued on behalf of the plaintiff, placing the
patient in
a State institution would not constitute payment by the
defendant of the patient’s reasonable caregiving expenses
occasioned
by the accident. I do not accept these submissions. These
costs are covered by the
section 17(4)
Undertaking and would be paid
out by the defendant provided they had been incurred reasonably and
necessarily. It is not for this
Court to grant an order declaring
that the plaintiff is entitled to claim these expenses.
[41].
Ms Goodenough submitted furthermore that
the Aquilian action remains the legal basis for compensation.
Therefore, so the argument
goes, the patient is entitled to the
amount of the diminution in his patrimony, that is to be compensated
by the Fund in respect
of those expenses which he would not
reasonably have had to incur but for the accident. That is in most
cases the way to evaluate
the diminution in Plaintiffs patrimony.
There is no merit in these contentions, which lose sight of the
provisions of the
section 17(4)
, which is aimed at precisely this
type of situation. In that regard see:
Road
Accident Fund v Mphirime
(supra)
[42].
The plaintiff submits that the Fund is
obliged to investigate claims properly and should remain ever mindful
of the fact that it
has been entrusted with the responsibility of
determining the fate of, in most cases, vulnerable accident victims,
most of whom
are poor and unsophisticated. As I indicated above, this
will happen at the stage, and not before, when the plaintiff pursuant
to the
section 17(4)
claims for these expenses. The Fund is empowered
to act in the manner it does by the provisions of the
section 17(4).
This also relates to the defendant’s stance that the patient
should at the appropriate time be removed from the care of Ms
P and
be placed in a State institution.
General Damages
[43].
I now turn to
the quantum of the general damages suffered by the patient.
[44].
The
plaintiff’s counsel suggested that a sum of R1.2 million should
be awarded to the plaintiff. She relied on the case of
Roberto
Carlos Penga v Road Accident Fund
,
(21275/2005)
[2008] ZAGPHC 279
(22 September 2008), for comparative
purposes, which dates back to 2008. In that matter the claimant was
awarded R750 000
in respect of a serious brain injury.
[45].
Counsel for
the defendant also referred to cases for comparative purposes. In
Vukeya v
Road Accident Fund,
(7B4) QOD 1 (GNP), decided in 2014, the plaintiff suffered a mild to
moderate brain injury as well as various orthopaedic injuries.
She
was awarded R330 000 as general damages, which in present day
monetary terms amount to R530 000. In the second case to
which
the defendant’s Counsel referred me, namely
Bikawuli
v Road Accident Fund,
(6B4) QOD, decided in 2010, the plaintiff, a 16-year-old boy,
suffered a moderate brain injury with cognitive fallout, memory
impairment, behavioural changes, fatigue, headaches and dizziness. He
was awarded R135 000 as general damages, which has a
present day
value of R226 000.00.
[46].
The award 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. I have
summarised the injuries and
sequelae
of the patient herein before.
[47].
In making an award under this head of
damages, I have had regard to the award as well as the comments by
the SCA in the matter of
De Jongh v Du
Pisanie,
2005(5) SA 457 (SCA), in which
matter an amount of R250 000 was awarded in respect of general
damages for a head injury which
led to brain damage which, in my
view, was much more severe than the injury sustained by the patient
in casu
.
Updated to 2019 this award translates into about R622 000.
[48].
Plaintiff in the
De
Jongh
matter sustained a head injury
consisting of extensive fragmented fractures of the frontal skull
extending into the orbits (eye
sockets) and the zygomatic arches
(cheek bones), as well as the jaw, causing extradural haematoma which
led to unconsciousness
and which had to be surgically removed.
[49].
Importantly, in this matter the SCA,
quoting Holmes J, also pointed out the following fundamental
principle relative to the award
of general damages:
‘
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.’
[50].
De Jongh
is
also authority for the view that the evaluation of brain damaged
persons depend more on how they actually handle their daily
lives
rather than how they perform on psychometric tests. See paragraph
[21] of the judgment.
[51].
I have also had regard to the unreported
judgment (dated 30
th
March 2012) of Wepener J in the matter of
Nicholson
v RAF
, Case no: 07/11453 (SGJ). In that
matter the plaintiff sustained a
severe
traumatic brain injury coupled with soft tissue injuries to her back
and neck. Therefore, her brain injury was more or less the
same, if
not worse than that suffered by the patient in the present matter.
Ms Nicholson was awarded R400 000 during
March 2012.
[52].
Also in:
Hurter
v RAF
, 2010 (6A4) QOD 12 (ECD) –
2
nd
February
2010
,
the
plaintiff suffered extensive facial fracturing as well a severe
diffuse axonal injury to her brain, which included a brain contusion

and fracture of the base of the skull. She only regained
consciousness fully about ten days after the accident. As a result of

the severe traumatic brain injury, the plaintiff was left with
significant cognitive, socio – emotional and socio –

behavioural difficulties. She had inter alia become irresponsible and
indifferent; she uses inappropriate language and was often

confrontational, aggressive and inappropriate when interacting with
others. Hurter, a 20 year old female student was awarded R500 000

during 2010. Updated to 2019, this award translates into about
R803 000.
[53].
I have also had regard to
Modan
N O v RAF
, C & B [Vol VI] A4-123 –
December 2011, in which Maluleke J awarded R350 000 for general
damages to a 3 year old
who suffered a concussive brain injury, a
fractured nasal bone; soft tissue injury to the forehead with scalp
haematoma. Updated
to 2019 this award is worth R535 000.
[54].
More recently on the 29
th
August 2013 Kathree – Setiloane
J in the matter of
Mathys N O v RAF
,
C & B, A4 – 273 [Vol VI], awarded general damages of
R500,000.00 for a plaintiff, who suffered a
severe
brain injury and minor orthopaedic injuries. He was admitted to
hospital with a GCS of 10/15. Updated to 2019 this award equates
to
R684 000.
[55].
Accordingly, I am of the view that,
following the awards in the above matters, the plaintiff’s
general damages should be R700 000,
which amount should
adequately compensate the plaintiff for general damages.
Cost
[56].
The defendant has been successful in its
defence of the plaintiff’s claims relating to the issues of the
caregiving services,
the additional transport costs and the special
education fees. This means that, applying the general rule, the Fund
should be awarded
the costs relative to proceedings relating to these
disputes from at least the 18
th
of May 2018, and possibly before then, to date.
[57].
The plaintiff, on the other hand, was also
successful in his claim against the defendant for general damages.
This means that the
plaintiff is entitled to a costs order relative
to his claim for general damages from the 31
st
of October 2014 to date. This cost order would however be cancelled
out to a lesser or greater extent by the cost order to which
the
defendant is entitled as envisaged in the paragraph above.
[58].
Accordingly, as regards the cost of the
proceedings since 16
th
July 2015, that being the date on which the above second Court Order
was granted in terms of which a
Curator
ad Personam
was appointed, I am of the
view that no order as to cost would be fair, reasonable and just to
all concerned. In the exercise of
my discretion I therefore intend
granting a cost order to that effect.
Order
In the result, I make the following
order.
1.
The
defendant shall pay to the plaintiff an amount of R700 000
(seven hundred thousand rand) in respect the plaintiff’s

general damages.
2.
The
aforesaid capital amount of R700 000 shall be paid into the
plaintiff's attorneys' trust account.
3.
The
defendant shall pay interest to the plaintiff on the aforesaid amount
of R700 000 at the rate of 10.25% per annum as from 14
days from date
of this order until date of payment.
4.
Each
party shall bear his / its own cost of this action and the
proceedings herein since the 16
th
of July 2015 to date.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD ON:
15
th
November 2018
JUDGMENT DATE:
27
th
March 2019
FOR THE PLAINTIFF:
Advocate Doris Goodenough
INSTRUCTED BY:
Van der Elst Attorneys
FOR THE DEFENDANT:
Adv N Shaik – Peremanov
INSTRUCTED BY:
Maribana Makgoka Incorporated