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[2010] ZAGPPHC 527
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C.M.C v Road Accident Fund (52604/06, 52509/08) [2010] ZAGPPHC 527 (21 April 2010)
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG NORTH
DIVISION)
CASE NO: 52604/06
In the matter of:
C[...] M[...]
C[...]
.............................................................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
........................................................................................................
DEFENDANT
and
CASE NO: 52509/08
In the matter of:
P[...] J[...]
C[...]
...............................................................................................................................
PLAINTIFF
AND
ROAD ACCIDENT
FUND
........................................................................................................
DEFENDANT
Matter heard on
14th and 15th April 2010.
Judgment handed
down on 21 April 2010
JUDGMENT
EBERSOHN AJ:
[
1 ] The two matters were combined as both plaintiffs were in the same
vehicle when the collision occurred and the facts relating
to the
merits are the same.
[2] In this
judgment, for the sake of convenience, the plaintiff in matter
52604/08 will be referred to as Mrs C[...] and the plaintiff
in
matter 52509/08 will be referred to as Mr C[...].
[3] The merits have
been conceded by the defendant and only the quantum of the claims of
the two plaintiffs were in contention before
this court.
[4]
It is common cause that the two plaintiffs and their two children
were driving on a road between Delmas and Leandra and that
an
oncoming vehicle veered from the lane it was driving in to its right
hand side and Mr C[...], who was driving their vehicle,
drove off the
tar surface onto the shoulders of the road in order to avoid the
collision but the oncoming vehicle still veered
more and more to the
right and collided with the front of Mr C[...]’s vehicle. Both
plaintiffs testified that it was a horrifying
experience seeing the
oncoming vehicle veering to the right and that a head-on collision
would result and that there was nothing
they could do about it. It is
clear that they were severely shocked about what happened in this
regard. (See my judgment in
Minister
of Safety and Security
v
Sibili
[2003]
4 All SA 451
(Tk) regarding shock sustained in such circumstances and
the vast local and foreign authorities quoted therein).
[5] After the
collision the 5 year old son of the two plaintiffs got out of the car
and ran onto the tar road in a hysterical state
and Mr C[...],
although he was injured, followed and got hold of him so as to
prevent him from being run over by oncoming traffic.
When Mr C[...]
returned with his son to his car it appeared that the driver and
other occupants in the vehicle with which they
collided, had run away
and were nowhere to be seen.
[6] Mr C[...] then
realised that Mrs C[...] was severely injured and was bleeding from
cuts all over her face and forehead and she
was in a lot of pain and
that she was also hysterical. Mr C[...] then noticed that their
little daughter, Me[...], who was also
seated in the back of the car,
was making strange noises and he went to her and he picked her up and
noticed blood streaming from
her nose and mouth and she was having
difficulty in breathing. This also brought on a severe panic in both
Mr and Mrs C[...] with
regard to their daughter possibly dying. They
frantically phoned the ambulance services who refused to assist and
also telephoned
a sister of Mrs C[...], who was staying in a nearby
town, and summoned her to the scene and upon her arrival she then
drove Mrs
C[...] who was holding M[...] on her lap, trying to
facilitate M[...]’s breathing. Upon arrival at the hospital,
the hospital
demanded to see their medical aid card, w'hich of course
she did not have with her as it was in the car and the hospital then
demanded
a huge cash deposit, which Mrs C[...] obviously also did not
have with her, and a generous medical practitioner then interfered
stating that the daughter was dying and he immediately attended to
M[...] and he summoned a paediatrician and together they battled
to
get her breathing and to keep her alive. Mrs C[...] was put in a bed
in another section of the casualty section.
[7] Meanwhile, on
the scene, Mr C[...] was waiting for the police to arrive and there
apparently were many bystanders and he was
afraid of looting and the
police, after a long while, arrived on the scene and as far as Mr
C[...] could ascertain, the police
did not go to much trouble to try
and trace the driver of the other vehicle.
[8] Mr C[...] was
dazed and extremely shocked and after he could leave the scene he was
driven to the hospital where his wife and
daughter were.
There he found his
wife in the casualty section and in another section he found the two
doctors who were fighting for the life of
M[...]. Unfortunately, they
were not successful and M[...] died. Mr C[...] then went to inform
his wife that M[...] had died and
they both broke down and cried. Mrs
C[...], who was severely shocked, sat with the body of M[...] on her
lap for a while.
[9] The Court will
now deal more extensively with the quantum of Mrs C[...]’s
claim.
[10] Mrs C[...] was
seen by a counselling psychologist, one Karin Havenga, whose report
and the contents whereof were admitted by
consent. In her report she
stated that Mrs C[...] told her that she saw how the vehicle from the
front veered to its wrong side
of the road and it appeared to her as
if the vehicle was lurching from the left to the right and that they
were later told that
the driver of the vehicle was under the
influence of liqueur. She stated that Mr C[...] attempted to avoid
the collision by steering
their car out of the road onto the gravel
next to the tar but despite that the collision still occurred. Mrs
C[...] described that
in the impact she received a blow to her
stomach. She did not become unconscious and she vaguely remembers
that her husband attempted
to summon medical aid to no avail. She
stated that she thereafter lost consciousness from time to time but
she then realised that
she also was severely injured. She learned
that M[...] was severely injured and was bleeding from her nose and
mouth and Mrs C[...]’s
sister hurried with them to the hospital
in Trichardt. Mrs C[...] stated that this was for her a very
harrowing drive because she
was afraid to be on the road, her sister
was seven months pregnant and Mrs C[...] held her seriously injured
daughter in her arms
on her lap and prayed that she should live and
not die. During the drive her daughter made strange noises and it was
clear to Mrs
C[...] that she was hurt and bleeding internally. She
also noticed that her daughter’s leg was fractured and that she
clearly-had
a head injury.
[11] Mrs C[...]
suffered from a lot of pain due to the injuries to her face and
forehead, her neck and in her stomach. It later
became known that her
liver had ruptured and she was bleeding internally and also from her
face and forehead. When she wiped the
blood from her face and
forehead she could feel that pieces of glass were imbedded in her
face and was cutting in deeper and deeper
into her flesh under her
skin. Mrs C[...] was treated in the casualty deparment and after she
was operated upon she was hospitalised
in intensive care for three
days and was thereafter transferred to an ordinary ward and she was
discharged about a week later.
Due to her being hospitalised she
could not attend to any of the arrangements for the funeral of
M[...]. She was discharged from
hospital on the morning of the
funeral and it was a harrowing experience for her to look at the
corpse of her daughter just before
the funeral.
[12] The injuries to
her face consisted of abrasions and lacerations, with a whiplash
injury to her neck and a ruptured liver and
she was severely shocked
and in pain. She was treated for the shock and presently, according
to her evidence in court, which was
not contested, she cannot lift
her arms higher than her shoulders, she cannot do the household
chores by herself anymore and must
make use of assistance, she cannot
move around furniture, she has a fear of being in a motor car and
only drive short distances
in town herself and does not drive on the
main roads anymore.
[13] Before the
collision she had a sparkling personality, she used to gym and could
do all the household chores alone and she intended,
when the children
were at schoolgoing age, to be gainfully employed again. She
testified that at Russels, where she worked as manageress
till 2001
when she resigned due to her and her husband planning of a family and
to have children. When resigning she earned about
R8 000-00 monthly
which in today's money is a much higher figure. With her experience
and personality it is clear that she would
have been gainfully
employed and that she would have work until a normal retirement age.
[14] She testified
that she still suffers from severe headaches every day and that she
is depressed and she uses medication for
these symptoms. While
testifying in court she openly wept and it is clear to the court that
she is also suffering from post traumatic
stress and that she is
still grieving over the death of her daughter and have not overcome
the loss.
[15] She testified
that due to the medication she has to take she suffers from a lack of
libido and that there is virtually no sexual
activity between her and
her husband. It is clearly a distressing factor in the marriage and
she testified that it has lead to
the marriage becoming strained.
[16] Mrs. C[...]’s
claim for general damages was by consent amended to R300 000,00 and
after discussions counsel for Mrs C[...]
and the defendant agreed
that her past medical costs be granted in the amount of R15 343-61
and with regard to the future medical
costs the usual certificate
would be furnished by the defendant.
[ 17] That left the
amount of general damages to be decided by the Court and the Court
will now deal with it.
[18] Mrs C[...]
testified, with regard to the injuries to her face and forehead. that
she had to go to a beautician to attend to
the scars after the wounds
and abrasions on her face and forehead healed. The defendant
initially opposed an award regarding this
treatment of Mrs. C[...] by
Yvette van Rooyen who runs the health and beauty clinic in Standerton
and who treated Mrs C[...]. It
appeared that at the hospital the cuts
and lacerations on her forehead and in her face were sutured by the
doctor and after the
wounds healed her face looked awful with red
marks where there were abrasions and scars where the were cuts and
she could still
feel the pieces of glass imbedded in her flesh under
her skin and sores would start when the pieces of glass were
accidentally
disturbed under the skin when she washed her face and
dried it. These pieces of glass were carefully removed by Yvette van
Rooyen
and after the sores healed she peeled the skin of the whole
face of Mrs C[...] by rubbing it so as to remove the scars and
residue
of the abrasions and she used laser beams and a sunbed to
restore colour evenly to her face and she supplied cream which Mrs
C[...]
had to apply to her face during the night and during the day,
both creams enhancing the growth of skin cells. This treatment took
place over many sessions over a number of weeks. She testified that
the scars and residue of the abrasions were still visible although
being covered by make-up and it is clear that it affected and still
affects her psychologically. The defendant, after discussion
between
counsel, eventually agreed to also pay these expenses. Mrs C[...]
testified that she had no eyebrow on the left hand side
of her face
as all of it were tom away and she had false eyebrow tattooed in
place so as to have her eyebrows on both sides to
look similar. It is
clear that Mrs C[...] has been severely traumatised and is suffering
from post traumatic stress and is affected
by the scars and residue
of the abrasions on her face and forehead. Her headaches and
reduction in her mobility and inability to
raise her arms higher than
her shoulders seem to be the effect of the whiplash injury to her
neck. Where she was a vibrant woman
she now suffers impediments in
her movements and lack of ability to do her own homework anymore and
it clearly affected her personality.
The reduction is much more than
the 5% which the orthopaedic surgeon estimated in 2010 as it appears
from his report.
[19] With regard to
Mr C[...], he was not as severely injured physically as Mrs C[...].
He received a blow to his body but he could
walk and run but he has
been severely traumatised by the incident causing him, after the
funeral of their daughter, to remain in
bed for almost three weeks.
He feels bad about the inactivity on the part of the police to act
against the driver of the other
vehicle who was clearly under the
influence of liquor and in whose vehicle there were several empty
liquor bottles found after
the collision. He also feels bad about the
inactivity on the part of the police to trace the owner of the
vehicle and to ascertain
from him who was driving the vehicle at the
time of the collision.
[20] Mrs C[...]
stated that Mr C[...] quite often wept, grieving about the loss of
their daughter and that there was friction between
Mr C[...] and
their son, their son somehow blaming Mr C[...] for the death of his
sister. Mr C[...] had problems maintaining his
work level at his
employer where he worked as a financial consultant and that he had to
drag himself from the bed in the mornings
and with drooping shoulders
would go to work where he would do his work and come home in the
afternoons and then went to bed straightaway
and that there was a
lack of communication in the household.
[21]
Mrs C[...] testified that she and Mr C[...] planned to have two
children and after the birth of the son and M[...], Mr C[...]
had a
vasectomy. After the death of M[...] the vasectomy had to be undone
and it was apparently successful because about twenty
months ago Mrs
C[...] gave birth to another child this time a boy. With regard to
the costs of the vasectomy, Mr Masina, the defendant’s
counsel,
in Mr C[...]’s case, informed the court that he left it in the
hands of the Court to decide whether it was warranted
or not. It is
clear that the costs regarding the vasectomy must also be awarded to
Mr C[...] as it was psychologically necessary,
after the death of
their daughter, for them to have another child in the place of
M[...]. Mr C[...] did not attend the Court in
the forenoon and Mrs
C[...] explained that he burst out in tears and fled away from the
Court and that he was very stressed emotionally
and that to appear in
court as a witness was like facing a mountain for him. However, he
regained his composure and he was called
to briefly testify in the
afternoon and the Court took great care so as to not have him
emotionally upset. It is clear that he
has post traumatic stress and
in answer to a question by the Court his counsel advised the Court
that an appointment was made with
a psychiatrist for treatment. It is
common cause that such treatment is for a prolonged period and it is
not always 100% successful.
[22]
During argument both counsel for the plaintiff and the two counsel
for the defendant referred to decided cases. In this regard
I refer
to
RAF v Marunga
2003
(5) SA 164
(A) where NAVSA JA stated the following:
“
[23|
This court has repeatedly stated in cases in which the question of
general damages comprising pain and suffering, disfigurement,
permanent disability and loss of amenities of life arises, a trial
court in considering all the facts and circumstances of the
case has
a wide discretion to award what it considers to be fair and adequate
compensation to the injured party. This court will
interfere where
there is striking disparity between what the trial court awarded and
what this court considers ought to have been
awarded; see Protea
insurance Company Ltd v Lamb
1971 (1) SA 530
(A) at 535A-B and the
other cased cited there.”
[23] At 535B and
further in the Protea case Potgieter JA considered what regard should
be given to awards made previously in decided
cases. After
considering dicta and several decisions of this court the learned
judge of appeal stated that there was no hard and
fast rule of
general application requiring a trial court or a court of appeal to
consider past awards. He pointed out that it would
be difficult to
find a case on all fours with the one being heard, but nevertheless
concluded that awards in decided cases might
be of some use and
guidance.
[24]General
damages are, by their very nature, not capable of being measured in
monetary terms. Their quantification is a matter
of judicial
discretion. In exercising its discretion, the court must determine a
reasonable compensation which is fair and just
in the peculiar
circumstances of the case. Watermeyer JA in
Sandler
vs Wholesale Coal Suppliers Ltd
1941
AD 194
at 199 expressed the following
dicta:
"It must be
recognised that though the law attempts to repair the wrong done to
suffer who has received personal injuries in
an accident by
compensating him in money, yet there are no scales by which pain and
suffering can be measured, and there is no
relationship between pain
and money which makes it possible to express the one in terms of the
other with any approach to certainty.
The amount to be awarded as
compensation can only be determined by the broadest general
considerations and the figure arrived at
must necessarily be
uncertain, depending upon the judge’s view of what is fair in
all the circumstances of the case.”
(See
also
AA Mutual
Insurance Association Ltd
v
Maqula
1978
(1) SA 805
(A) at 809B.)
[25]
In making an award, the court is not bound by one or other method of
calculating general damages. The court has a wide discretion.
(See
the headnote in
Southern
Versekering
v
Carstens NO
1987
(3) SA 577
(A).) Comparative awards in other cases might be a useful
guide. They maybe instructive but not decisive. In the Protea case
the
Court said the following at 535H-536A:
“
It should
be emphasised, however, that the process of comparison does not take
the form of meticulous examination of awards made
in other cases in
order to fix the amount of compensation. Nor should the process be
allowed so to dominate the enquiry as to become
a fetter upon the
court’s general discretion in such matter.”
[26]
It is settled law that psychological
sequelae
can
be the subject of a damages claim arising from a motor accident
provided that it can be established that a plaintiff suffered
a
detectable psychological injury. (See
Bester
v Commercial Union Versekeringsmaatskappy van SA Beperk
1973
(1) SA 769
(A) at 776H-777A;
Barnard
v Santam Bpk
[1998] ZASCA 84
;
1999
(1) SA 202
(SCA) at 208H-209A;
Road
Accident Fund v Sauls
2002
(2) SA 55
(SCA) at 61 I-J.).
[27] In considering
general damages which comprises of past medical costs, past and
future loss of earnings, pain and suffering,
loss of amenities,
emotional shock and trauma it is not always possible to calculate
each specific item and it is often proper
to make one award covering
all these fields. With regard to past medical costs the parties
agreed with regard to Mrs C[...] that
that be settled at R15 343-61.
For future medical costs the defendant will provide the usual
prescribed certificate.
[28] Taking into
consideration the immense trauma Mrs C[...] has suffered and is still
enduring and will have to endure for the
rest of her life and her
loss of earnings, the pain she will suffer, her loss of amenities the
emotional shock and trauma, all
of a permanent nature, the Court is
of the opinion that an award R300 000-00 for general damages plus the
amount of past medical
costs, as agreed, must be awarded with costs.
[29] With regard to
Mr C[...] the Court is of the opinion that the four items set out in
paragraph 8.1 of the particulars of claim
relating to the vasectomy
must be allowed as being reasonable under the circumstances so as to
have another child in the place
of M[...]. That results in the past
medical costs of R30 290-46 being allowed. With regard to future
medical costs the defendant
undertook to provide the usual prescribed
certificate.
[30]
With regard to loss of income and future loss of income there was no
real evidence regarding this but it can be accepted that
his ability
to eain an income has ben impaired significantly and this will be
considered by the Court when assessing the amount
of general damages.
[31] With regard to
general damages it is clear that Mr C[....] did suffer pain and a
loss of amenities and suffered vast emotional
shock and trauma and is
suffering of post traumatic stress and that his earning apability has
been impaired, all of which mentioned
aspects are of a permanent
nature. The Court is of the opinion that an award for general damages
in the amount of R150 000-00 must
be made with costs.
P.Z. EBERSOHN
ACTING JUDGE OF
THE HIGH COURT
Counsel
for Mrs C[...]: Adv. L.D. Scholtz
Counsel
for Mr. C[...]: adv. N. Erasmus
Attorneys
for Mrs and Mr. C[...]: Thys Cronje Inc.
Ref.
Me H. Hertzog
Tel.
012 x 362 4959
Counsel
for the defendant
in
Mrs C[...]'s case:
Adv. M.G. Mashaba
Counsel for the
defendant in Mr C[...]’s case: Adv. S.S. Masina
Defendant's
attorneys : T.M. Chauke Attorneys
Ref.
Mr. Maphelela/RAF/C.585 and C.586
Tel.
012x326 8713