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[2009] ZAECPEHC 6
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Kritzinger and Another v Road Accident Fund (337/08) [2009] ZAECPEHC 6 (24 March 2009)
FORM A
FILING SHEET FOR EASTERN CAPE,
PORT ELIZABETH
PARTIES
:
G I J KRITZINGER + 1 vs ROAD ACCIDENT FUND
NOT REPORTABLE
Case
Number:
337/08
High
Court:
EASTERN
CAPE, PORT ELIZABETH
DATE
HEARD:
18
& 19 MARCH 2009
DATE
DELIVERED:
24
MARCH 2009
JUDGE(S):
JANSEN
J
LEGAL
REPRESENTATIVES â
Appearances:
for
the Applicant(s):
ADV
FROST
for
the Respondent(s):
MS
AMERCIA
Instructing
attorneys:
Applicant(s):
ROELOFSE
MEYER INC
Respondent(s):
FRIEDMAN
SCHEKTER
CASE
INFORMATION -
Nature
of proceedings
:
Key
Words
:
Summary:
IN
THE HIGH COURT OF SOUTH AFRICA
NOT
REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case No.:
337/08
Date
delivered: 24 March 2009
In
the matter between:
GREGORY
INGRID
JACOBS
KRITZINGER
First Plaintiff
MINIE
JEAN KRITZINGER
Second Plaintiff
and
THE ROAD
ACCIDENT FUND
Defendant
JUDGMENT
JANSEN,
J:
This is an action
for damages. The two plaintiffs were the parents of two girls who
were tragically killed in a motor vehicle accident
which occurred on
4 October 2003 at approximately 11 oâclock the evening in
the vicinity of the familyâs house. The
one child, Lee-Anne, was
24 years old at the time. The second one, Leigh, was only four years
old. Lee-Anne was carrying Leigh
in her arms, walking home from a
party. They were apparently accompanied by Lee-Anneâs boyfriendâs
father. They were standing
on a pavement about to cross the road
when the insured vehicle approached them, mounted the pavement and
collided with the three
persons who were all killed at the scene of
the collision. Shortly after the collision the plaintiffs were
informed about it by
one of Lee-Anneâs friends. They proceeded to
the scene of the accident to discover that their two daughters had
been killed.
The following day they had to go to the mortuary to
identify the bodies of the two children. The children were buried a
week
after their death and the plaintiff experienced shock, horror
and continued disbelief that they had tragically lost their two
children.
The plaintiffs instituted an action
for damages against the defendant. With the exception of the first
plaintiffâs claim for
general damages all the other claims were
settled between the parties. The nature and extent of the
plaintiffsâ claims and the
agreement between the parties in respect
thereof appears from paragraphs 1-6 of this Courtâs order set out
below. I need not
say anything more about it.
For general damages
the first plaintiff claims an amount of R200 000,00 for shock and
trauma experienced by him caused by the death
of his two children.
His original claim was for R150 000,00.
Only one witness
was called to testify in this matter. It was Mr Ian Meyer, a
clinical psychologist who testified on behalf of
the plaintiffs. His
evidence was uncontested. It was not disputed that the first
plaintiff suffered severe emotional shock and
trauma as a result
whereof he is suffering from chronic bereavement reaction with
protracted grief. He is suffering from a chronic
post traumatic
stress disorder and a chronic major depressive disorder. He has
re-occurring memories and visual flashbacks and
nightmares of the
collision and the death of the deceased children. He avoids as far
as possible family functions. He avoids
attending church because
that reminds him of the funeral service of his children. He has
become emotionally withdrawn. He is
suffering from a sleep disorder.
He is also suffering from headaches which he experiences on an
almost daily basis. The first
plaintiff was 52 years old at the time
of the incident. He is now 58 years old. Two psychological
assessments of the two plaintiffs
were performed by Mr Ian Meyer.
The first assessment was conducted on 13 March 2007. On that
occasion Mr Meyer concluded that
both plaintiffs have developed
chronic psychiatric and psychological sequelae, both presenting with
complicated protracted bereavement
reactions with inconsolable grief
in association with post traumatic stress disorder and major
depressive disorder. The first
plaintiffâs mental state is
reflective of more distress and discontrol than that of the second
plaintiff, presenting with a picture
of emotional incontinence that
has probably been exacerbated by his premorbid stroke.
Mr Meyer had a
follow-up consultation with the plaintiffâs to assess whether there
had been any significant change in their circumstances
since the
previous assessment two years prior. The second assessment took
place on 13 February 2009. When Mr Meyer discussed
the need for a
re-assessment with the first plaintiff he immediately burst into
tears and struggled to contain his overwhelming
emotionality. This
continued throughout the period of the assessment of the first
plaintiff. This was a very difficult interview
in which Mr Meyer was
intensely aware of the plaintiffâs grief and suffering. When asked
whether there had been any improvement
in his circumstances the first
plaintiff responded that he has subjectively become worse. On
re-assessment Mr Meyer found the
first plaintiffâs mental state
significantly more compromised than that of the second plaintiff.
The first plaintiff still presents
with a picture of grief and
emotional incontinence that has probably been exacerbated by the
sequelae of the premorbid stroke that
he sustained in 2002, although
he had reportedly made a satisfactory adjustment to his diminished
life circumstances subsequent
to the stroke and earlier retirement on
medical grounds. It was mentioned by Mr Meyer that the plaintiff,
who had a premorbid
history of hypertension and peptic ulceration,
had a relapse in terms of the ulceration subsequent to the death of
his children
and was hospitalised at the Mercantile Hospital. It was
Mr Meyerâs view that the first plaintiffâs peptic ulceration was
probably
triggered post-trauma by a combination of stress and the
frequent use of medication. Mr Meyer further expressed the view that
the first plaintiffâs mental state remained uncontained and that he
is still presenting with a picture a emotional incontinence
and
discontrol, characterised by a diagnosis of post traumatic stress
disorder and a co-morbid major depressive disorder. He needs
to be
referred to a psychiatrist for an assessment, treatment and possible
hospitalisation. The first plaintiffâs psychiatric/psychological
condition is chronic in nature and the medium to longer term
prognosis is very poor considering his co-morbid pathology. This
is
complicated by the effects of his stroke which exerts a detrimental
synergistic effect on his mental state and further adjustment
and is
contributory to his incontinent emotional presentation. He will have
to be on medication, probably for the rest of his
life.
I have been
referred by counsel on behalf of the plaintiffs to several decisions
where damages were awarded to plaintiffs for emotional
trauma
suffered. Not one of the cases, however, was directly in line with
the instant case. In any event, each case has to be
decided upon its
own facts. It remains difficult. The first plaintiffâs initial
claim for general damages before the amendment
was for an amount of
R150 000,00. When regard is had to all the circumstances of the
case, that amount of R150 000,00 appears
to me to be a sufficient
amount for general damages suffered by the first plaintiff.
In the result, the following order is
made (paragraphs 1-6 by agreement):
1. Defendant is to
effect payment in settlement to First Plaintiff in the sum of R6
800,00 in respect of funeral expenses and R8
704,02 in respect of
past medical expenses within fourteen days from date of this Order.
2. Defendant is to effect payment in
full and final settlement to Second Plaintiff in the sum of R120
000,00 as and for general
damages within fourteen days from date of
this Order.
3. Should the
capital amount in paragraph 1 and 2 above not be paid within fourteen
days from date of this Order, Defendant shall
be liable for payment
of interest on the said capital calculated at the legal rate of 15,5%
per annum as from date due until date
of payment.
4. Defendant shall
furnish First Plaintiff with an Undertaking in terms of Section
17(4)(a) of the Road Accident Fund Act, Act 56
of 1996, for 100% of
the costs of future accommodation in a hospital or nursing home, or
treatment of or rendering of a service
to him or supplying of goods
to him in consequence of the injuries sustained by him as a
consequence of the death of his two children
as a result of the motor
vehicle collision on 4 October 2003 and the sequelae thereof, after
such costs have been incurred and
upon proof thereof.
5. Defendant shall
furnish Second Plaintiff with an Undertaking in terms of Section
17(4)(a) of the Road Accident Fund Act, Act
56 of 1996, for 100% of
the costs of future accommodation in a hospital or nursing home, or
treatment of or rendering of a service
to her or supplying of goods
to her in consequence of the injuries sustained by her as a
consequence of the death of her two children
as a result of the motor
vehicle collision on 4 October 2003 and the sequelae thereof, after
such costs have been incurred and
upon proof thereof.
6. Defendant shall
pay the costs of the suit of First Plaintiff and Second Plaintiff, as
taxed or agreed, on a party and party scale
together with interest
thereon at the legal rate of 15,5% per annum as from a date fourteen
days after taxation or agreement.
Such costs are to include:
6.1. The reasonable qualifying
expenses of the following expert witnesses:
6.1.1 Ms Heather April, clinical
psychologist;
6.1.2 Mr Ian Meyer, clinical
psychologist.
7. Defendant is to
effect payment to first plaintiff for general damages an amount of
R150 000,00
within 14 days from date of this order and interest on the said
amount calculated at the legal rate of 15,5% per annum from date
due
until date of payment.
________________
J C H JANSEN
JUDGE OF THE HIGH COURT