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[2018] ZAGPJHC 410
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Manqinda v Road Accident Fund (12465/15) [2018] ZAGPJHC 410 (13 June 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO:
12465/15
13/6/2018
In the matter between:
MANQINDA
MPHO
ISAAC
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
COLLIS J:
INTRODUCTION
[1]
The plaintiff, an adult male has
instituted a damages action against the defendant for certain bodily
injuries that he sustained
in a motor vehicle collision on 8 February
2012. At the time of the collision, the plaintiff was a passenger in
a motor vehicle
bearing registration letters and numbers [….]
travelling on the R54 road between Potchefstroom and Vereeniging. The
collision
occurred when the driver of the vehicle in which the
plaintiff was travelling lost control of his vehicle and it fell into
a ditch.
[2]
In the particulars of claim at
paragraphs 7 thereof, the plaintiff alleges as follows:
"7.
As
a
result of the
collision, the Plaintiff suffered inter alia, the following injuries:
7.1
Facial fractures;
7.2
Back trauma;
7.3
Frontal abrasion;
7.4
Left tibia and tibia fracture,
and
7.5
Multiple contusions
The aforementioned injuries
have resulted in the Plaintiff suffering from severe back pain which
have resulted in him being unable
to walk or stand for prolonged
periods."
[3]
In
its plea the defendant denied the injuries sustained by the plaintiff
and put the plaintiff to proof thereof.
[4]
During February 2018, the parties filed
pre-trial minutes. In the pre-trial proceedings the parties had
agreed that the issue of
both the merits and quantum remained
outstanding. At the commencement of the proceedings the court however
was informed that the
merits had subsequently been settled between
the parties 100% in favour of the plaintiff.
[5]
At the behest of the parties, the court
was further requested to determine the plaintiff's general damages
only and for the plaintiff's
future loss of earnings to be postponed
sine die.
The
defendant at the same instance had agreed to furnish the plaintiff
with an undertaking in terms of
section 17(4)
(a) of the
Road
Accident Fund Act 56 of 1996
in respect of the plaintiff's future
medical expenses.
THE DISPUTE
[6]
As mentioned the matter comes before me
for the determination of the general damages to be awarded to the
plaintiff and with specific
reference to the severity of the head
injury sustained by the plaintiff.
PRINCIPLES
TO APPLY WHEN EVALUATING A CLAIM FOR GENERAL DAMAGES
[7]
It is a well-known fact that making an
award for general damages comprising pain and suffering,
disfigurement, permanent disability
and loss of amenities of life is
particularly difficult. It has been repeatedly stated in previous
cases that in such cases a trial
court should have regard to all the
facts and circumstances of a case and that a court would have a wide
discretion to award what
it considers to be fair and adequate.
[1]
In determining this head of damages, the court will take into
account, the age, sex, status and relevant physical and psychological
characteristics of the plaintiff into account. The court will also
take into account the plaintiff's ability to endure pain or
inability
to do so.
[8]
In view of the difficulty in calculating
an amount to be awarded for non-patrimonial damages, considerations
of fairness and reasonableness
always play determining roles in the
assessment of such damages. Whilst fairness and reasonableness mean
that the claimant must
be sufficiently and properly compensated for
the injury he has suffered, it also means that inordinately high
awards should not
unnecessary burden the defendant.
[9]
Previous comparable awards, adjusted to
reflect current market values, are also taken into account when
calculating the reasonable
and fair award to be made for general
damages.
THE
EVIDENCE
[10]
No
viva voce
evidence was presented before the court. Also,
the plaintiff himself did not testify before this Court. Counsel on
either side had
elected to merely hand into the record certain
medico-legal reports which were prepared and then to address the
court in closing
arguments with specific reference to some case law
and the contents of these reports. No formal heads of arguments were
prepared
on either side and as such this Court was called upon to
extract from these expert reports the most crucial portions from the
individual
reports without the benefit of the specific experts
testifying thereto, or in the absence thereof a summary in relation
to expert's
reports having been prepared by counsel. This is a
practice which should in fact be discouraged as the court is called
upon to
determine appropriate compensation for the plaintiff without
due assistance from the parties.
[11]
I will then proceed to deal with
specific reports referred to during arguments.
REPORT OF DR. MUSHWANA (GENERAL
PRACTITIONER)
[12]
Dr. Mushwana a General Practitioner
examined the plaintiff on 5 January 2013 approximately eleven months
after the date of the collision.
Pursuant to his examination he
completed the RAF 4 Form.
[2]
His diagnosis of the plaintiff was that he suffered from epilepsy, a
head injury and a left tibia fracture and he recorded the
current
symptoms and complaints of the plaintiff to be chronic headaches
associated with poor vision.
REPORT
OF PROFESSOR LEKGWARA
[13]
Professor Lekgwara, a Specialist
Neurosurgeon, examined the plaintiff on 2 October 2017. His
examination took place, 5 years and
one month after the collision.
Pursuant to his examination he compiled a report, which report was
marked as Exhibit B. As per his
report he recorded that the plaintiff
complained of suffering of backache, headache and convulsions. On the
past medical history
obtained by him, he recorded that the plaintiff
was healthy before the collision and that he has suffered from no
chronic illnesses.
Albeit that he recorded that the plaintiff was
involved in a previous collision during 2010, the surgeon recorded
that the plaintiff
did not sustain any injury during such previous
collision. In his opinion, the plaintiff sustained a thoracic spine
injury and
a Grade 1 concussion. In relation to the concussion he
opined that the plaintiff may suffer from post-concussion headaches
and
neuropsychological complications which will require treatment in
future.
JOINT
MINUTE PREPARED BY CLINICAL PSYCHOLOGISTS
[14]
The joint minute prepared by the
clinical psychologists, Dr. Dlukulu on behalf of the plaintiff and
Mr. MacFarlane on behalf of
the defendant was handed in by agreement
between the parties which minute was marked as Exhibit C. Therein, Dr
Dlukulu recorded
that prior to the present accident in question the
plaintiff was involved in two previous collisions. One during 2008
during which
he sustained an injury to his forehead for which he
received medical attention together with a left shoulder dislocation.
It was
further recorded that the plaintiff during 2010 was involved
in a second collision, where he sustained a fractured left
tibia-fibula,
an injury to his spine, multiple facial contusions and
facial fractures.
[15]
Mr. Macfarlane, upon examination of the
plaintiff, recorded that the plaintiff reported having been involved
in a first collision
during 1998. He further recorded that the
plaintiff was involved in a second collision, being the present
collision, in respect
of which he reported injuries to his head,
face, spine and left leg. During his examination of the plaintiff, he
had no recollection
of having been involved in a collision during
2010. The neurosurgeons were however in agreement that albeit that
the plaintiff
had no independent recollection of having been involved
in a collision during 2010, the plaintiff must have sustained a brain
injury
and so too that it cannot be excluded that he sustained a head
injury during the present collision giving rise to this action. Mr.
Macfarlane, was further of the view, that the plaintiff's
neuropsychological difficulties are probably primarily attributable
to a traumatic brain injury sustained as a result of the collision
during July 2010 and that the pain relating to the present accident
may have exacerbated the effects of the brain injury.
DR.
READ (ORTHOPEADIC SURGEON ON BEHALF OF THE DEFENDANT)
[16]
Dr Read examined the plaintiff on 14
July 2017 . Pursuant to his examination he compiled a report which
report was handed into the
record as Exhibit E.
[3]
The report was handed into the rec9rd by agreement between the
parties. As per his report he recorded under the heading the history
of the accident, that according to the RAF4 Form, the plaintiff
sustained a fracture of the left tibia, but that this injury was
sustained during a collision which occurred during 2010 . Upon his
examination the only injury which he observed which could be
attributed to the 2012 collision, is that of an injury to the lumbar
spine of the plaintiff. Dr. Read further recorded in his report
that
prior to the accident the plaintiff was relatively active and healthy
and able to do minor chores, whereas post collision
he requires
assistance in this regard.
[17]
On all account the plaintiff was a
healthy person prior to the 2012 collision. At the time of the
collision, he was employed as
a driver of heavy duty trucks and
suffered from no chronic illnesses. Post-collision, he did return to
his previous employer, but
was unable to cope with the demands of his
employment and was as a result assigned to working in a shop. He
eventually became unemployed,
albeit that inconclusive evidence
exists as the reasons for his lack of employability. At present he
suffers from pain at the back
of his head at least twice a week and
has reported that his energy levels have dropped since the last
collision. This Court was
not appraised of the entire extent and the
sequelae of the plaintiff's injuries to his quality of life, as the
plaintiff elected
not to testify before this Court.
[18]
During argument counsel on either side
had referred the court to various cases as a guide in determining an
appropriate award to
be made in respect of general damages. It should
however be borne in mind, that each case must be determined on its
own merits.
18.1
Abrahams v Road Accident Fund 2014 (7J2)
QOD 1 (ECP) where the plaintiff suffered a badly communicated
fracture of the right proximal
femur, fractures of the right distal
fibula and patella; fracture of the right medial malleolus and a mild
concussive traumatic
head injury. As a result of the injuries
sustained the plaintiff was rendered unemployable. The plaintiff was
awarded R 500 000,
00, which in today's value is worth R 699 000,00.
18.2
D'Hooghe v Road Accident Fund 2009 6 QOD
J2-1 (ECP) In this matter the plaintiff suffered from a diffuse
axonal brain injury, fractures
of the humerus, tibia, and tibial
plataue. As a result of the injuries sustained the plaintiff was
unable to work and compete in
the open employment market. The
plaintiff was awarded R 650 000,00, which today is worth R 1 051
000,00.
[19]
In this present matter, it was common
cause between the parties, that the Plaintiff was involved in two
prior collisions before
the present collision giving rise to this
action. It is also common cause that as a result of the second
collision the Plaintiff
sustained a head injury and that he also
sustained a further head injury in his last collision, although not
so severe.
[20]
Having said that I am however satisfied
that an award of R 700 000.00 will be reasonable and fair for general
damages in this matter.
ORDER
[21]
As a consequence, the following order is
made:
21.1
The defendant is to pay the plaintiff an
amount of R 700 000. 00 (Seven Hundred Thousand Rand) in respect of
general damages for
his personal injuries sustained by the plaintiff
in a collision on 8 February 2012, which amount should be paid on or
before 15
July 2018;
21.2
The defendant is ordered to furnish an
undertaking in terms of
section 17(4)
of the
Road Accident Fund Act
56 of 1996
, in respect of future accommodation in a hospital or
nursing home or treatment of /or rendering of services or supply of
goods
to the plaintiff, Mpho Isaac Manqinda, arising from injuries
sustained in the above mentioned motor vehicle accident which
occurred
on 8 February 2012;
21.3. The plaintiff's
future loss of earnings and earning capacity claim is postponed
sine
die;
21.4
The defendant shall pay the plaintiff's
agreed or taxed party and party costs on a High Court scale, which
costs shall
inter alia
include
the following:
21.4.1.
The fees of counsel on a High Court
scale
21.4.2.
The costs of expert witnesses'
medico-legal reports which notice has been given, the costs to
include the preparing of the joint
minutes and any addendums between
the parties;
21.4.3.
The costs to include the costs for the
22
nd
and 23
rd
February 2018 on a Party and Party High court scale.
21.5
Should the payment of the capital amount
of R 700 000,00 not be effected by 15 July 2018, the plaintiff will
be entitled to recover
interest on the said amount at the rate of
10.5% per annum from 16 July 2018 to date of final payment.
C.J
COLLIS
JUDGE
GAUTENG DIVISION
APPEARANCES:
Counsel
for the Plaintiff
: ADV. V.
MALEBANE
Instructed
by
: MASIKE
INCORPORATED
Counsel
for the Defendant
:
ADV. K.
KUTA
Instructed
by
: MF
JASSAT DHLAMINI INCORPORATED
Date
of Hearing
: 22-23
FEBRUARY 2018
Date
of Judgment
: 13 JUNE
2018
[1]
Road Accident Fund v Marunga 2003 (5) SA 164 (SCA)
[2]
Bundle E pg 1-10
[3]