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[2020] ZAGPJHC 58
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A M v Road Accident Fund (17158/2017) [2020] ZAGPJHC 58 (28 February 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
17158/2017
In
the matter between:
M,
A
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Amount
of general damages suffered in a motor vehicle collision. The
plaintiff suffered a moderate to severe head injury and scarring.
JUDGMENT
DE VILLIERS, AJ
[1]
The plaintiff was injured in a motor
vehicle collision on 16 May 2016. The RAF accepted liability for 80%
of his proven damages.
The parties have settled all damages claims,
save for the claim for general damages. Accordingly, the only matter
for decision
before me was the general damages suffered by the
plaintiff consequent upon the collision.
[2]
The parties agreed to a statement of facts,
and the plaintiff testified. The parties further agreed that two
joint minutes and a
number of expert reports (where only the
plaintiff had submitted reports) may be received into evidence, and
that the factual averments
and the opinions expressed therein are
common cause. There was one exception to this agreement, a clinical
psychologist expressed
an opinion that the plaintiff had suffered a
severe head injury. The plaintiff agreed that a clinical psychologist
is not qualified
to have formed the opinion and accepted the
neurosurgeon’s opinion that the plaintiff suffered a moderate
to severe head
injury.
[3]
The main heads of general damages in this
matter are (a) scarring, and (b) the head injury.
[4]
The extent of the scarring was clearly
visible in court. The plaintiff wears dreadlocks that cover what is
described as a “
14 cm x 1 cm
hypertrophic scar over the right preauricular area
”.
The other scars are described as:
[4.1]
“
Approximately 4 cm transverse
scar over the right forehead;
[4.2]
Approximately 2cm oblique scar over the
left upper eyelid with ptosis;
[4.3]
Approximately 4cm scar over left lower
eyelid and cheek; and
[4.4]
Multiple scars over the left cheek
.”
[5]
The scarring to the plaintiff’s left
eye area is clearly visible and is, with due respect, although
unsightly, not shockingly
so. The other scars to the plaintiff’s
forehead and to his left cheek are less visible and are not
unsightly. The plaintiff’s
main complaint is that, in his
community, a man with a scarred face is associated with gangsterism.
People fear and avoid such
a person, he testified. The scarring would
form a part of the general damages that is awarded below, but not the
major component
thereof.
[6]
The general damages based on the head
injury is the major part of the plaintiff’s claim for general
damages. It is common
cause that the plaintiff has been rendered
unfit to work as a result of this injury. The RAF has agreed to pay
him more than R1.5
Million in damages for his loss of earnings. He
had a business repairing electronic and refrigeration goods. The
plaintiff testified
that his life changed dramatically after the
collision. The work he can no longer do, was his hobby too. Enjoying
his work, he
would open his shop early in the morning, and often
would work till late. Friends would visit him whilst he worked, and
they would
listen to music. He derived great satisfaction from his
work.
[7]
The plaintiff has nothing to do now. He is
a burden on others. Not only has his work stopped, but he can no
longer go to the gym,
box or do martial arts. His personality changes
made him less attractive to his friends and he has lost contact not
only with work
and gym friends, but also his school friends. The
agreed facts and opinions by the clinical psychologist were:
“
The
Plaintiff has a Grade 12 level of education along with tertiary
training in electronics (diploma) and refrigeration (certificate)
.
He has
previously worked as a technician in the related field for various
companies, before starting his own business repairing
electronics
.
His
educational background suggests that the Plaintiff was of at least an
average to high average premorbid intellectual potential.
The
neurocognitive deficits and
reported
word-finding
difficulties, along with his observed dysarthric speech, and
comprehension and expression difficulties would be in
keeping with
the expected outcome following a
severe brain
injury, with a left-hemispheric focus. The Plaintiff's sister
confirms the speech and language deficit, saying he makes
little
sense and does not respond to conversation appropriately.
The
Plaintiff reported minimal symptoms of depression on psychometric
assessment and his mood was clinically observed to be euthymic
,
and his
affect varied. However
,
the
Plaintiff lacks insight into his deficit
,
which
would account for this. The Plaintiff expressed that he only feels
unhappy when he thinks about the accident. The Plaintiff
displays
neurovegetative and behavioural changes such as social withdrawal,
passivity, lack of interest, poor appetite, sleep disturbances
and
irritability (as noted by his sister) These changes, as well as the
lack of insight can be attributed to the significant injury
to the
brain.
From
a neuropsychological perspective, the Plaintiff is not a fair
competitor in the open labour market. His fluctuations in attention,
comprehension difficulties
,
slowed
psychomotor and processing speeds
,
as well
as stimulus resistance difficulties renders him unemployable as the
Plaintiff would have difficulties understanding and
following
instructions and would be too slow to be effective. In addition
,
he lacks drive and
ambition now, which is due to the injury to the brain
.
Given
the suspected organic aetiology of these symptoms it suggests tha
t
therapeutic
intervention would play a supportive role only.
The
Plaintiff has suffered a head injury with expected
(moderate
to)
severe
neurocognitive
,
neurobehavioral
and altered mood sequalae
.
”
[8]
Clearly the plaintiff suffered pain, mental
pain, loss of amenities of life, and the handicap of disability. Such
damages "…
are not
susceptible to exact or immediate calculation in monetary terms. In
other words, there is no real relationship between the
money and the
loss
" as confirmed in
Van
der Merwe v Road Accident Fund and Another (Women's Legal Centre
Trust as Amicus Curiae)
[2006] ZACC 4
;
2006 (4) SA 230
(CC) para 39. I must guard against my sympathy resulting in an award
that is unfair to the RAF [
De Jongh v Du
Pisanie NO
2005 (5) SA 457
(SCA) paras
56-66 and
Road Accident Fund v Delport
NO
[2006] 1 All SA 468
(SCA) para 24].
The summary of the law on achieving a balanced outcome (reasonable,
fair, and adequate) as set out in
Mashigo
v Road Accident Fund
[2018] ZAGPPHC 539
paras 10-15, is useful.
[9]
The plaintiff referred me to the cases
listed below in suggesting an award of R1 200 000.00. I do not
summarise the cases, in some
respects they are comparable, and others
not:
[9.1]
Torres v Road Accident Fund
(04/29294) ZAGPJHC (27 March 2007), not reported
on SAFLII, where general damages of R600 000.00 was awarded
(current value
R1 249 000.00);
[9.2]
Anthony v Road Accident Fund
[2012] ZAGPJHC 13, where general damages of R1 600
000.00 was awarded (current value R1 836 000.00). This case
was an
unusual case, and the award was in excess of any comparable
cases;
[9.3]
Dlamine v Road Accident Fund
[2012] ZAGPJHC 13, where general damages of R850
000.00 were awarded (current value R1 281 000.00). The
injures in this
case are comparable to the present matter;
[9.4]
Mashigo
v Road Accident Fund
[2018]
ZAGPPHC 539,
[1]
where general
damages of R450 000.00 were awarded (current value R493 560.00).
The plaintiff suffered unsightly scars on her
breasts and arms. Her
claim for general damages was largely premised in these injuries. She
still suffered from the emotional trauma
related to the accident and
the effects of the severe scars. Davis J held in para 22:
“
The
plaintiff in this case experienced pain and suffering when sustaining
the injuries. She continued suffering pain for some time
thereafter,
and currently still has pain although to a lesser degree. She will
again experience pain during or subsequent to reconstructive
surgery.
She had lived with unsightly scars to her breasts since the accident
and will continue to do so until reconstructive surgery.
She might
even remain with permanent scarring. She was, as a result of the pain
in her breasts, not able to breastfeed her second
child and was
deprived of the nurturing and bonding experience which is part of the
crucible of motherhood. In addition, she suffered
minor orthopaedic
injuries which impacted negatively on her amenities of life. Taking
all this into consideration, I am of the
view that an amount of R 450
000 will be a fair and reasonable amount in the circumstances and I
will insert this amount into the
draft order provided wherein the
other aspects of the Plaintiffs claims and costs have been catered
for”
;
and
[9.5]
Mtshali v Road Accident Fund
[2017] ZAGPPHC 868, where general damages of R850
000.00 were awarded (current value R975 000.00).
[10]
The RAF referred me to the two cases that
follow in suggesting an award of R700 000.00. I also do not summarise
them. In some respects,
they are comparable, and others not:
[10.1]
Maroti v Road Accident Fund
[2017] ZANWHC 119
, where general damages of R600
000.00 were awarded (current value R660 000.00). General damages
of R1.8 million was claimed.
The plaintiff stayed in hospitals for a
period of 2 to 3 months and suffered pain acutely for a least a
month. He lost his first
wife in the accident. He suffers from severe
headaches that can last from 24 to 48 hours which he gets two to
three times a week.
He suffers from epileptic convulsions, has water
leakage from his nose and has lost smell (which has also affected his
taste).
He has a deteriorating memory. He forgets instructions, names
and places. He cannot travel or drive alone. He is forgetful when
performing self-case home management and life skill activities. A
surgical scar on his head behind his hair line and a scar over
his
left orbit are visible. He suffered a traumatic brain injury which
has resulted in long-term neurocognitive deficit within
a moderate
degree of severity.
[10.2]
S v Road Accident Fund
[2018]
ZAGPJHC 452, where general damages of R850 000.00 was awarded
(current value R975 000.00).
[11]
It seems to me that the combination of some
damages due to the scarring, as well as the general damages caused by
the brain damage,
would place this matter towards the higher end of
general damages in reasonably comparable cases. In my view, that
amount in this
case is R1 million.
[12]
I make the following order:
1.
The defendant is ordered to pay to the
plaintiff the sum of R800 000.00 in respect of general damages,
2.
The defendant is ordered to make payment of
interest on the aforesaid amount at the rate of 10.5 percent per
annum calculated from
the 15
th
calendar day from date of this judgment until date of payment in
full;
3.
The defendant is ordered pay the
plaintiff’s taxed or agreed party and-party costs.
__________________
DP de Villiers AJ
Heard
on: 10 February 2020
Delivered
on: 28 February 2020
On
behalf of the Plaintiff:
Adv A Louw
Instructed
by: Kruger & Pottinger Inc
On
behalf of the Defendant: Adv Z Buthelezi
Instructed
by: Maluleke Msimang & Associates
[1]
Also
referred to earlier herein.