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[2018] ZAGPJHC 438
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M v Road Accident (12601/2017) [2018] ZAGPJHC 438 (18 June 2018)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
12601/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED.
18/6/2018
In the matter
between:
M
E
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J U D G M E N T
MOSHIDI,
J
:
INTRODUCTION
[1] The plaintiff, aged 27 years at
the time of the accident, has instituted an action against the
defendant for damages suffered
as a result of bodily injuries he
sustained in an accident. The accident occurred along
Cloverdene Road, Cloverdene, Daveyton,
Gauteng Province on 8
September 2015.
THE
ISSUE FOR DETERMINATION
[2]
At the commencement of the trial, the parties had settled all the
other heads of damages in respect of the plaintiff’s
future
medical and hospital expenses, adaptive and related expenses.
It was agreed that the defendant shall provide the plaintiff
with a
certificate of undertaking as envisaged in section 17(4) of the Road
Accident Fund Act
[1]
.
In as far as the plaintiff’s claim for loss of earnings, and
earning capacity is concerned the parties agreed that
the plaintiff
shall be awarded the amount of R2 129 817, 00. The
only heads of damages for determination by this
court is the issue of
the plaintiff’s general damages. By agreement between the
parties, this determination should be based
on the medico-legal
reports. As a consequence, no oral evidence was led.
[3] The nature of the injuries
sustained by the plaintiff in the accident as well as the probable
sequelae
thereof are almost exclusively common cause when
gleaned from the various medico-legal reports, and in particular the
joint minutes.
[4] In paragraphs 7 and 8 of the
particulars of claim, the plaintiff’s bodily injuries are
described as follows:
“
7.
As a result of the aforesaid collision, Plaintiff sustained severe
bodily injuries consisting of:
7.1
Severe head injuries characterized by:
7.1.1
A period of loss of consciousness;
7.1.2
A period of post-traumatic amnesia;
7.1.3
Resultant brain damage;
7.1.4
Resultant neuro-cognitive deficits involving:
7.1.4.1
Impaired memory and concentration;
7.1.4.2
Poor mental;
7.1.4.3
Persistent dilapidating headaches.
7.2
Neurobehavioral deficits, involving:
7.2.1
A change of personality;
7.2.2
Aggressive behaviour;
7.2.3
Short temperedness;
7.2.4
Irritability.
7.3
Multiple lacerations and abrasions.
8.
As a result of the aforesaid injuries, Plaintiff underwent
hospitalization and received medical treatment, was disabled and
disfigured and suffered pain and loss of amenities of life.
Particulars
here of are the following:
8.1
Hospitalisation
Plaintiff
was initially conveyed from the scene of the accident to Tambo
Memorial Hospital where he was admitted as in-patient.
On
admission the plaintiff was unconscious. CT brain scan was done
and it revealed a head injury. On admission the plaintiff’s
GCS was 4/15. The plaintiff was breathing using artificial
means and urinary catheter was administered.
For
some days, the plaintiff was treated from a stretcher until he was
transferred into the intensive Care Unit where remained unconscious
and he was always lying on the bed. The plaintiff was intubated on a
T-piece.
It
was also noted that the plaintiff was unable to move his right side
of his body. The plaintiff was unable to speak and
he had to be
seen by a speech therapist and by various experts including but not
limited to physiotherapist, orthopaedic surgeon
and neurosurgeon.
The
plaintiff was subsequently discharged to convalesce at home.
The plaintiff is currently attending physiotherapy as an
outpatient
as a result of the injuries he sustained in the said accident.
8.2
Pain and Suffering
Plaintiff
initially suffered severe pain, which gradually abated with the
passage of time. Plaintiff continues to suffer from
symptomatology related to his injuries. In particular,
plaintiff suffers from and severe restriction of mobility. It
is anticipated that when plaintiff undergoes the future medical
treatment, he will experience attendant pain and discomfort,
disablement,
and risk associated therewith.
8.3
Disability
8.3.1
Plaintiff was temporarily totally disabled during period of
hospitalisation and whilst convalescing at home;
8.3.2
Plaintiff is presently still temporarily partially disabled as a
result of the ongoing symptoms emanating from the injuries;
8.3.3
It is anticipated that despite future surgical and conservative
treatment, plaintiff will suffer from ongoing residual functional
disability.
8.4
Loss of amenities of life
The
plaintiff has lost those amenities of life normally associated with
the injuries and sequelae as set out above.
In
particular, there has been a severe restriction in the level of
physical activities the plaintiff is able to perform since the
accident, consequently the plaintiff is unable to engage in
recreational activities of his pastimes
.”
THE
JOINT MINUTES
[5] There are about ten (10) sets of
joint minutes of experts placed before the court. It is truly
unnecessary to relate the contents
of all these reports for present
purposes. The joint minutes of the neurosurgeons (Drs J Earle and V
Karan), agreed that the plaintiff
was travelling as a restrained
front seat passenger in a company vehicle when the accident occurred
on 8 September 2015; he lost
consciousness at the scene of the
accident and was taken by ambulance to OR Tambo Memorial Hospital
where he was investigated and
then admitted for the injuries
sustained. His GCS was 9/15 and this dropped further; he
sustained a severe traumatic brain
injury with both diffuse and focal
components and he was treated conservatively for his head injury; he
received extensive rehabilitation
for the resultant
sequelae
of the injuries in the form of physiotherapy, occupational therapy
and speech therapy for at least two months. At discharge
he was
still wheelchair-bound and could not mobilise on his own. He
could not use crutches. He requires an assessment
by a clinical
psychologist for the neurocognitive and neuropsychological
sequelae
of the head injury; his life expectancy is not affected; he is at a
great risk of developing epilepsy as compared to the general
population; he will not be able to do the work that he did prior to
the accident; and Dr Earle is of the opinion that the plaintiff
still
has slight weakness in the right arm and leg.
[6] The industrial psychologists, (Ms
Sonet Vos and Mr Tshepo Tsiu) noted that:
“
the
plaintiff holds a (SV) Grade 12 school qualification, (TT) Grade 11
level education. He does not qualify for the National
Senior
Certificate. He passed 3 out of 7 subjects. The plaintiff was
employed as a stock clerk at Lewis Stores (Bears) at
the time of the
accident. He was earning a gross salary of R4 102.04 per month.
The plaintiff would most probably have
continued working until the
retirement age of 60/65 years, depending on the employer’s
retirement age policy.
”
Post-accident the industrial
psychologists noted that the plaintiff has not returned to any form
of employment, and his services
were terminated from Lewis Stores on
11 November 2016. The plaintiff presents significant physical
limitations, cognitive defects,
emotional difficulties, limitations
in speech and language skills. In the light of the above, and
given the fact that there
is little hope for further improvement, the
plaintiff will not be capable of returning to any form of employment,
and should for
all practical purposes be regarded as unemployable;
and Ms Sonet Vos noted that the plaintiff now relies on help of
others for
his daily activities and self-care, and that the plaintiff
should therefore be afforded the cost of employing a care-giver for
the remainder of his lifespan. In this regard, Ms Vos suggested
that based on the Quantum Yearbook, 2017, the cost of a care-giver
is
R151 000,00 per annum, which include relief attendants for
weekends, etc.
[7] The occupational therapists (Ms
Lesego Matlala and Ms Mamotshabo Mogoele) agreed that: the
plaintiff currently does not
possess the functional capacity to
execute his occupation as a stock clerk in the open labour market;
that although the plaintiff
has residual work capacity to actively
engage in sedentary to light strength requirement workloads carried
out mostly in a seated
position, this will have to be with the
exclusion of the use of his right dominant hand for maintenance of a
power grip or fine
motor coordination. The plaintiff, based on
the following factors in combination, is a vulnerable employee:
lack of
vocational exposure and lack of employability skills, which
would include self-discipline, work ethics and patterns of behaviour
that are necessary for an individual to seek, gain and sustain
employment and function effectively in the workplace; that should
the
plaintiff lose family support, provision must be made to allow him
access to a fulltime domestic assistant with caregiver training;
alternatively, the plaintiff will require placement in a care
facility and that, should the plaintiff develop poorly controlled
epilepsy, consideration should be given to afford him,
inter alia
,
the cost of private transportation. Finally, in respect of the joint
minutes, the psychiatrists (Drs Matjane and Matjila) agreed
that:
the injuries sustained by the plaintiff are likely to impact on his
ability to compete in the open labour market; that
the plaintiff’s
enjoyment of life is affected negatively by the physical and
cognitive difficulties he suffers from as a
consequence of the
accident; that he will benefit from long-term psychotherapy; and that
pain management will be an important part
of his management. Based on
the above, it is plain that the plaintiff has suffered a severe brain
injury with diffuse and focal
brain damage, with partial paralysis,
and the probability of developing epilepsy. According to the
report of the plaintiff’s
orthopaedic surgeon, the plaintiff
sustained a head injury, and as a result has right sided weakness of
the upper and lower limb.
The report of Ms Gibson, a psychologist
(Educational) with special interests in neuro-psychological and
educational assessment
of Adults and Children, the same brain injury
suffered by the plaintiff manifested in the following: the
plaintiff has no
recall for several weeks post injury; he
required ventilation and feeding by maso-gastric tube; he required
extensive rehabilitation;
he has retained right sided hemiplegia with
severe co-ordination and mobility difficulties, these were confirmed
on neuro-physical
assessment, and he experiences severe headaches. At
page 18 of the report, Ms Gibson opined:
“
There
is considered to be a nexus or direct, causal connection between the
brain injury sustained and poor post-morbid outcome,
supported by
medical evinced, as evidenced by report of difficulties consistent
with brain injury and findings on neuro-psychological
assessment of
neuro-physical, neuro-cognitive and neuro- affective and behavioural
difficulties. It is considered that the
brain injury was a
watershed in the life of the injured party and no further improvement
in functioning is likely to occur from
a neuro-psychological
perspective. The view of the current writer is that taking into
consideration the outcome of the brain injury
was very severe.
The brain injury is considered to have caused serious and permanent
mental and emotional impairment …
Mr M is considered
unemployable from a neuro-psychological perspective with final
comment regarding loss of earnings being deferred
to an industrial
psychologist and actuary.”
[8] Based on the entirety of the above
exposition, it was argued on behalf of the plaintiff, and based on
certain case law, that
a fair and just amount in respect of the
plaintiff’s general damages would be the amount of R2,4 million
(two million four
hundred thousand rand). On the other hand, it
was submitted on behalf of the defendant that, based on certain case
law too,
the fair amount for general damages in the particular
circumstances of the case, would be an amount between R900 000,00
(nine
hundred thousand rand) and R1,5 million (one and a half million
rand) only. I must mention that, it was also argued on behalf
of the plaintiff, that he was additionally entitled to an amount of
R151 000,00 (one hundred and fifty one thousand rand),
per month
as the cost of a care-giver, and as a result of the injuries
sustained and
sequelae
thereof. This is the dilemma
placed before the court.
SOME
APPLICABLE LEGAL PRINCIPLES
[9]
I refer to some legal principles, and case law, including that relied
upon by the respective parties. In support of his contentions,
counsel for the plaintiff relied on cases such as
Stephen
N.O. v General Accident Fire and Life Assurance Corporation
Limited
[2]
,
and
Megalane
N.O. v The Road Accident Fund
(Witwatersrand
Local Division)
,
[3]
a
judgment delivered on 13 December 2006). On his turn, counsel for the
defendant, for his contentions, relied on cases such as
Vakata
v Road Accident Fund
[4]
,
Kentridge v Road Accident Fund
[5]
,
Torres v Road Accident Fund
[6]
,
Quantum of Damages; Webster and Others v Commercial Union Insurance
Company
[7]
;
Celliers v South African Railways and Harbours
[8]
;
Bartlett v Mutual and Federal Versekeringsmaatskappy 1989 (4) QOD A4
– 20 (T),
and
others. I have now due regard to all the above case law.
[10] The plaintiff was a passenger in
his employer’s motor vehicle. As a consequence, liability on
the merits has been conceded
fully (100%) in his favour.
THE
ASSESSMENT OF GENERAL DAMAGES
[11]
It is trite law that the assessment of general damages cannot with
ease, be done with any measure of mathematical accuracy,
and the
court has a wide discretion. See, for example,
AA
Mutual Insurance Limited v Maqula
[9]
and
Southern
Insurance Association Limited v Bailey N.O.
[10]
.
It
is equally trite that no two cases are always similar since it is
difficult to find a comparable matter that is on all fours
in respect
of the facts. Each case must be adjudicated on its own particular
merits. See also
Van
Dyk v Road Accident Fund
[11]
for
the proposition that an amount for general damages is to compensate a
claimant for the pain, suffering, discomfort and loss
of amenities of
life to which she/he has been subjected as a result of the particular
injuries sustained; and that such an amount
should be updated to
present day values where appropriate.
THE
APPROPRIATE AMOUNT AND REASONS
[12] Having considered carefully and
cumulatively all the relevant circumstances of this matter, as
sketched above, in particular,
the serious nature of the injuries;
the
sequelae
thereof; the current physical and mental
condition of the plaintiff; his relative youth; the partial paralysis
on the right side;
the probability of epilepsy; and the now
dependency of the plaintiff, etc. I have come to the conclusion that
the amount of R 1 900 000,00
(one million nine hundred
thousand rand) will be fair and equitable as general damages for the
plaintiff. It is also obligatory
that this amount should be protected
by the creation of a trust, as pointed out to plaintiff’s
counsel during closing argument,
and indeed undertaken by him. It is
also recommended strongly that from the above amount, consideration
be given to paying to the
plaintiff an immediate and initial amount
of R40 000,00 (forty thousand rand) in order to alleviate the
plaintiff’s
financial dependency from the date of the accident
(8 September 2015), to the date hereof.
PLAINTIFF’S
ALLEGED CLAIM FOR CARE-GIVER
[13]
I must mention categorically that the above amount of general damages
does not include the plaintiff’s alleged claim
for a
care-giver. The claim is plainly misplaced. Such a claim cannot be
brought competently (as it is) under the guise of general
damages.
The claim should properly and correctly be dealt with under the
damages head, loss of income/earning capacity. Alternatively,
it
should be incorporated under the undertaking to be furnished by the
defendant in terms of section 17(4) of the Road Accident
Fund
Act
[12]
.
That is if the provisions of the section are correctly interpreted.
Indeed, when pressed further in closing argument, counsel
for the
plaintiff, conceded that the case of
Stephenson
N.O. v General Accident
[13]
,
on which he relied for a claim for the cost of a care-giver, is not
applicable here. In my view, the concession was well-made.
[14] I must draw to a conclusion. As
stated earlier in the judgement, at the commencement of the trial,
the court was informed that
the other heads of damages had already
been settled between the parties. These are, past hospital and
medical expenses (no amount
mentioned); future hospital and medical
expenses (undertaking) and loss of earnings/earning capacity
(R2 129 817,00).
No specific figures were provided, which
was unfortunate. However, the parties are at liberty to approach the
unopposed motion
court to make the settlement agreement an order of
court, which may include issues such as the expenses and cost of
witnesses.
The creation of the actual trust may also be incorporated
therein. The only issue for determination by this court was the
plaintiff’s
general damages.
ORDER
[15] For present purposes, and for all
the foregoing reasons, the following order is made:
1. The defendant shall pay to the
plaintiff the sum of R2 129 817, 00 (two million one
hundred twenty nine thousand, eight
hundred and seventeen rand) in
respect of loss of earnings and earning capacity.
2. The defendant shall pay to the
plaintiff the sum of R1 900 000, 00 (one million nine
hundred rand only) in respect
of general damages.
3. The defendant shall furnish to the
plaintiff an undertaking in terms of
section 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
, as amended, for the cost of all further
accommodation of the plaintiff in a hospital/nursing home or
treatment of or rendering
of service(s) to the plaintiff or the
supplying of goods to him arising from the injuries sustained in the
accident on 8 September
2015.
4. The defendant shall pay the
plaintiff’s agreed or taxed costs of the action on the High
Court party and party scale.
5. The orders made above shall be
complied with within fifteen (15) days from the date of this
judgement.
6. The amounts payable above shall be
with interest at the applicable legal rate of interest at the time.
___________________________________________
D S S MOSHIDI
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Counsel For Plaintiff: LM Mataboge
Attorneys for Plaintiff: Mathebula &
Jona Inc
Counsel for Defendant: J Van Zyl
Attorneys for Defendant: Twala
Attorneys
Date
of Hearing:
15
February 2018
Date
of Judgement:
18
June 2018
[1]
56
of 1996.
[2]
1974
(4) SA 503 (RAD)
[3]
Case
no 8572/2005
[4]
2015
(7A4)
[5]
2016
(7A4)
[6]
2010
(6A4) page 1
[7]
1997
[8]
1961
(1) QOD 160 (T)
[9]
1978(1)
SA 801 (A)
[10]
1984
(1) SA 98
(A) at 114
[11]
2003
(SE8) QOD 1 (AF), at paragraphs [22] and [23]
[12]
56
of 1996
[13]
1974
(4) SA 503
(RAD)