About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2012
>>
[2012] ZAECPEHC 17
|
|
Nepgen NO v Road Accident Fund (2984/2009) [2012] ZAECPEHC 17 (15 March 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE, PORT ELIZABETH
NOT REPORTABLE
Case No.: 2984/2009
Date Heard: 8 & 9 March 2012
Date Delivered: 15 March 2012
In
the matter between:
JÉAN
JOHAN NEPGEN N.O.
…..................................................
Plaintiff
and
ROAD ACCIDENT FUND
…....................................................
Defendant
JUDGMENT
EKSTEEN J:
[1] This is an action for damages
arising from personal injury sustained in a motor vehicle collision.
The plaintiff sues in his
representative capacity as
curator ad
litem
for Thobile Enoch Nzayo (herein referred to as Nzayo).
[2] Nzayo was involved in a motor
vehicle collision in Tyhinira Street, Motherwell, Port Elizabeth on
16 June 2005 when he, being
a pedestrian, came into collision with a
motor vehicle. The plaintiff contends that the collision was due
solely to the negligence
of the driver of the motor vehicle and
accordingly action was instituted against the defendant herein. The
issue relating to liability
was separated from the quantification of
the claim and has previously been decided. An order was issued that
the defendant is liable
for 80% of such damages as the plaintiff is
able to prove that he has suffered arising out of the collision in
which Nzayo was
involved on 16 June 2005.
[3] Nzayo, who was 48 years of age
at the time of the collision, sustained very severe injuries in the
collision. It is common cause
that he sustained a severe brain
injury, a fracture of the right tibia and fibula, a fracture of the
left clavicle and extensive
soft tissue injuries. As a result of the
brain injury Nzayo experienced extensive cerebral oedema with
bleeding involving areas
of the brain causing blindness, for all
practical purposes, in both eyes. In addition Nzayo has sustained a
number of cognitive
deficits as a result of the brain injury which
together with his blindness, will probably require the appointment of
a
curator bonis
in due course. I shall revert to these issues
below.
[4] As a result of the collision
Nzayo was hospitalised and incurred medical expenses. He has been
rendered unemployable on the
open labour market and will never again
be employed. The parties have agreed on the quantum of the
plaintiff’s special damages
as follows:
1. Past Provincial hospital expenses
R135,00;
2. past private hospital expenses
R419 361,93;
3. past medical expenses R28 411,30;
and
4. past and future loss of earning
capacity R858 416,50.
[5] These amounts fall to be reduced
by 20% to give effect to the apportionment of damages to which I have
referred above.
[6] There is agreement that the
defendant will furnish the plaintiff with an undertaking in terms of
the provisions of
section 17(4)(a)
of the
Road Accident Fund Act, 56
of 1996
, to the extent of 80% of Nzayo’s costs of any future
accommodation in a hospital or nursing home or treatment of or
rendering
of a service or supplying of goods to him arising out of
the collision, after such costs have been incurred and upon proof
thereof.
[7] What remains to be determined is
the plaintiff’s claim for general damages and the associated
costs of a
curator bonis
. The plaintiff claims an amount of
R1 500 000,00 for general damages in respect of shock, pain
and suffering, disability,
discomfort and the loss of the enjoyment
of the amenities of life. The plaintiff has given notice of his
intention to call as experts,
Dr Keeley, a neurosurgeon, Dr
Mackenzie, an orthopaedic surgeon, Dr Gardiner, an ophthalmic
surgeon, Ms Ansie van Zyl, an occupational
therapist, Dr Richard
Holmes, an industrial psychologist, Dr Plunkett, a clinical
psychologist and Dr van Dyk, a general surgeon.
Summaries pursuant to
rule 36(9)(b) of the Uniform Rules of Court were filed in respect of
the evidence and opinions of each of
these experts. At the hearing of
the matter I was advised that the defendant admits the correctness of
the content of these reports
(save for that of Dr van Dyk upon which
reliance was not placed) and the factual basis for and the opinions
expressed in each of
these reports.
[8] By virtue of the agreements
between the parties I do not intend to analyse in great detail each
of these reports and I limit
the discussion below to the salient
features of these reports relevant to the assessment of general
damages.
[9] It emerges from the report of Dr
Keeley, which was prepared in June 2011, that immediately after the
collision Nzayo was admitted
to the Livingstone Hospital with a
Glasgow Coma Scale reading of 9/15. He was admitted to the intensive
care unit under the care
of Dr Azhar, a neurosurgeon, Dr Gajjar, an
orthopaedic surgeon and Dr Behari, a physician. Nzayo developed
multiple complications
and on 20 June 2005 he was transferred to the
Greenacres Hospital where he was admitted to the intensive care unit.
On 22 June
2005 Dr Gajjar performed an open reduction and internal
fixation of the right tibia using an intramedullary nail. On 27 June
arrangements
were made for a tracheostomy.
[10] Nzayo remained heavily sedated
throughout this period and it is recorded in the hospital notes on 20
July 2005, approximately
a month later, that he was still being
sedated every hour with morphine and Dormicum. He first started
speaking on 23 July 2005,
however, his speech was confused. He was at
that stage being fed by nasogastric tube. A catheter had also been
inserted. On 4 August
2005 Nzayo was discharged from the Greenacres
Hospital and hospitalised at the Aurora Hospital, still confused and
disorientated.
He was verbose and his speech was at times
inappropriate. He remained in the Aurora Hospital until 25 August
2005.
[11] During his period of
hospitalisation and on 22 June 2005 a CT brain scan was conducted
which showed an extensive subarachnoid
haemorrhage. X-rays of his
lower leg revealed a comminuted fracture of the proximal end of the
tibia and fibula. There was also
a serious injury to the pelvic
girdle with diastases and the ileus reflected bowel paralysis. A
further CT scan was conducted on
6 July 2005 which revealed swelling
of the left temporal occipital part of the parietal lobe.
[12] Dr Keeley recorded that during
1990 some 15 years prior to the collision, while Nzayo was working
for the Port Elizabeth Municipality
at the Waterworks he fell,
fracturing the right radius and ulna. The fracture was enclosed in
plaster of Paris cast which was removed
after about six weeks. The
fracture has never troubled him since and he resumed his work. He
did, however, notice at that stage
that there was a reduction in his
vision and it was found that he an underactive thyroid and required
thyroid supplements from
then on. Nzayo was of the view that his
vision was nevertheless adequate and spectacles were never suggested.
Nothing further is
known of this event and I do not consider that it
should be afforded any relevance to his current blindness.
[13] Dr Keeley summarised his
overall impression as follows:
“
Thobile
Enoch Nzayo involved in a road traffic accident, sustained a very
severe closed brain injury from which he has made a remarkable
recovery. He has been left with permanent cortical blindness.
There must be an underlying degree
of intellectual compromise which is not apparent in the circumstances
in which he now finds himself.
He is not invalided as a result of
his posttraumatic dementia but as far as his wife Georgina is
concerned, he is living a normal
life subject to his blindness.
It is unlikely that future medical
expense will be considerable.”
[14] I pause to mention that Dr
Keeley records in his report the rehospitalisation of the plaintiff
on 7 July 2008 when Nzayo had
developed Fournier’s Gangrene and
he had undergone a colostomy. Dr Keeley does not suggest what the
cause this condition
was and Dr Mackenzie later pertinently records
that it was not accident related. I shall accordingly not deal with
this portion
of Dr Keeley’s report. In respect of the
musculoskeletal injuries Dr Keeley records that Nzayo’s right
leg is shorter
than his left and that he will always walk with a
short limbed gait and will need the use of a crutch. This, Dr Keeley
postulates,
contributes a significant degree of impairment.
[15] Dr Mackenzie, an orthopaedic
surgeon, records as follows:
“
Mr Nzayo
denied any musculoskeletal pain. I specifically asked him whether he
had residual lower back, pelvic girdle, right lower
limb or left
shoulder regional pain. In each case he denied residual pain in these
regions. He quite vigorously demonstrated the
freedom of movement
that he has in both his lower and upper limbs.
He walked with one crutch which I
suspect was used mainly to provide ambulatory stability and to
orientate himself in what for him,
as a blind person, were unfamiliar
surroundings. He apparently is able to walk without the crutch when
at home and in familiar
surroundings. …”
[16] To this extent that these
comments conflict with Dr Keeley’s views in respect of the
orthopaedic injuries I prefer the
opinions of Dr Mackenzie.
[17] Nevertheless, from a
musculoskeletal point of view Dr Mackenzie confirms that the
plaintiff sustained fractures of his right
tibia and fibula and
bruising of the right side of his forehead. In addition, the
plaintiff sustained a closed fracture of the
left clavicle. He has
marked swelling on his right leg. Dr Mackenzie recorded that the
fractures were expertly managed by means
of reduction and internal
stability using an intramedullary rod with two proximal and one
distal locking screws. An examination
of radiographs demonstrated
solid union of the tibia and fibula fractures in adequate anatomical
alignment. Although a synostosis
has developed between the tibia and
fibula Dr Mackenzie does not regard this as being of any significance
and does not believe
that any intervention is warranted. In respect
of the leg length inequality to which Dr Keeley referred Dr Mackenzie
notes that
it is “functionally unimportant” and he does
not believe that it justifies the provision of a compensatory shoe
raise.
[18] The left clavicle fracture, Dr
Mackenzie notes, was similarly expertly managed and the outcome of
treatment was as good as
one could realistically expect. Nzayo denied
any left clavicular, acromio-clavicular or gleno-humeral discomfort.
The plate and
screws which were inserted are not prominently palpable
through the skin and therefore there is no valid medical indication
for
their routine removal.
[19] Dr Gardiner has confirmed the
cortical blindness in both eyes as a consequence of the brain injury.
This blindness is permanent.
[20] Ms van Zyl, an occupational
therapist has filed a lengthy report which, I think, is largely
supportive of the view expressed
by Dr Keeley that Nzayo “is
living a normal life subject to his blindness”. His very real
impairments flowing both
from his head injury and his leg injury
should however not be understated. Ms van Zyl records that Nzayo
complains of pain in the
leg which appears to be weather related and
which bothers him when he has walked “longer distances”
which, no doubt
as a consequence of his blindness, does not occur
often. He also complained to her of lower backache specifically when
he has been
sitting for a long time, however, this too, she records,
did not seem to happen often. These reports of residual pain are of
course
in conflict with Nzayo’s communication to Dr Mackenzie
which I have recorded above. For purposes of this judgment I accept
that Nzayo occasionally experiences pain in these regions.
[21] Nzayo complained to Ms van Zyl
that he is not able to stand independently and holds onto a family
member, furniture or the
wall. This too, no doubt, is largely a
consequence of his blindness. He is however independent in dressing,
washing and grooming
using adaptive methods, requiring extra time and
with assistance from his family in some tasks. Naturally he requires
assistance
with the choice of clothing and with tasks such as cutting
his food.
[22] His leisure activities are
limited and he spends most of his time pottering in and around the
house. He enjoys listening to
Xhosa programmes on his portable radio
and that seems to be the only contact with the outside world and his
highlight of the day.
He has a fair understanding of the programmes
and the timetable of the broadcasts. He knows the names of his
favourite presenters
and programmes. Notwithstanding all of this, his
loss is clearly huge and he is not able at all to participate in the
community.
He is limited to his role in the family with limited
involvement with the children.
[23] There is, undoubtedly, also a
measure of impairment of his cognitive functioning which is dealt
with in greater detail through
the report of Dr Plunkett. Of
significance, however, is the comment by Ms van Zyl that Nzayo
understands his limitations with regard
to his blindness and the leg
length discrepancy but he did not express or display frustration with
his situation. He seems to have
adapted fairly well taking his
limited education and his limited resources into account.
[24] Dr Holmes has set out Nzayo’s
educational development. He did not attend a pre-school facility and
was enrolled at the
Broadlands Farm School when he commenced his
schooling at the age of approximately 7 years. He received only a
very rudimentary
education. To Ms van Zyl he indicated that he
thought he had completed Std 1 and thereafter started working.
[25] Dr Holmes records that Nzayo
was of normal intellect but severely compromised with regard to the
effective use of his residual
capabilities. He remains painfully
mindful of his post-accident condition and limitations and has
suffered a significant loss of
his self-confidence and self-esteem.
He continues to mourn the loss of his pre-morbid circumstances. Dr
Holmes is of the view that
Nzayo expresses moods of despondency and
depression and is easily frustrated having feelings of inadequacy and
a sense of dependency
on others.
[26] Dr Plunkett, a clinical
psychologist, confirms the severity of the brain injury which was
suffered and the residual cerebral
blindness and neuro-psychological
compromise. Dr Plunkett’s psychometric testing showed gross
visual defect, severe concentration
and tracking problems, learning
and memory problems, diminished verbal fluency and slowed mental
processing. He notes that Nzayo
is dependent for his daily living and
quality of life, and indeed for his survival, on others. He continues
to note, however, that
it seems that Nzayo does not suffer from the
actively unpleasant personality change which can occur after closed
head injury. He
in fact enjoys interacting, he still interacts with
his friends and family although his tolerance is limited. The family
do not
enjoy as much outside social activity given his visual
impairment and disability.
[27] Finally Nzayo’s wife
testified at the hearing. Her evidence does little more than to
confirm that which emerges from
the various reports which I have
discussed above. Significantly, she does say that Nzayo suffers pain
in his leg and lower back
from time to time.
[28] On this basis I am called upon
to assess the reasonable quantum of the plaintiff’s general
damages. In determining general
damages the court is called upon to
exercise a broad discretion to award what it considers to be fair and
adequate compensation
having regard to a broad spectrum of facts and
circumstances connected to the plaintiff and the injuries suffered by
him, including
their nature, permanence, severity and the impact on
his lifestyle. (Compare
Hurter v RAF and Another
2010
(6) QOD A4-12 (ECP) at paragraph [40].) The result will necessarily
be a subjective assessment dependent upon the view which
the court
takes of what is fair in all the circumstances of the case. Thus, in
Sandler v Wholesale Coal Supplies Limited
1941 AD 194
at 199 Watermeyer JA stated:
“
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.”
[29] I have been referred during
argument by counsel on both sides to numerous previous decisions
relating to awards in matters
concerning serious head injury, brain
damage, blindness and orthopaedic injuries. These decisions are all
useful in guiding a court
to a reasonable assessment of the damages
to be awarded in the case under consideration, however, they would
rarely be on all fours
with the facts of the present case. Indeed
each of them differs from the facts of this case. There is for that
reason no hard and
fast rule of general application requiring a trial
court to consider previous awards (compare
Road Accident Fund v
Marunga
2003 (5) SA 165
(SCA) 169G-H).
[30] Furthermore, in considering
previous awards it is right that a court should be alive to the
effect of the ravages of inflation
upon the value of money during the
interceding years. Inflation rates, however, no matter how reliable,
are like previous awards,
merely guidelines as to what is an
appropriate award in a particular case (compare
AA Onderlinge
Assuransie Assosiasie Beperk v Sodoms
1980 (3) SA 134
(A) at
141G-H; and
Maloni v AA Mutual Insurance Association Ltd
1984 (3) QOD 480E).
[31] I take cognisance of the recent
tendency to grant higher awards in current times than has been the
trend in the past. (Compare
Wright v Multilateral Motor Vehicle
Accident Fund
1997 (4) QOD E3-31 (N); and
Road Accident
Fund v Marunga
supra
at 17F.) I have given
consideration too to the well-established principle that I should
take care to see that the award which I
make is fair to both sides so
as to give just compensation to the plaintiff, but not to “pour
out largesse from the horn
of plenty at the defendant’s
expense”. (Compare
Pitt v Economic Insurance Co.
Ltd
1957 (3) SA 284
(N) at 287.)
[32] On a consideration of all these
factors and in particular the injuries, and the sequelae thereof,
sustained by the plaintiff
as fully set out above I consider that an
award of R900 000,00 would represent a fair compensation for
general damages for
shock, pain and suffering, discomfort,
disability, disfigurement and loss of the enjoyment of the amenities
of life which Nzayo
has suffered. This figure, like the other agreed
figures, falls to be reduced by 20% to give effect to the
apportionment of damages
as previously decided.
[33] At the time of the issue of
summons Nzayo was cited as the plaintiff. What emerged, however from
the medico-legal report of
Dr Keeley and a subsequent letter from Dr
Holmes was that they were not of the view that Nzayo was currently in
a position to appreciate
the nuances of litigation and the financial
implications thereof nor did they believe that he was in a position
to manage his own
financial affairs. In these circumstances it was
resolved to seek the appointment of a
curator ad litem
to
conduct the litigation on behalf of Nzayo and to consider the
appointment of a
curator bonis
to manage the affairs of Nzayo
after the litigation. Whilst a
curator bonis
has not been
appointed yet the parties were in agreement before me that it would
be appropriate at this stage to order the defendant
to pay the costs
occasioned by the appointment of a
curator bonis
and the costs
associated with the services of the
curator bonis
in the event
of a
curator bonis
being appointed.
[34] In respect of the costs of the
litigation the plaintiff has been successful. Mr
Paterson
,
on behalf of the defendant, argues nevertheless that the plaintiff
should not be awarded all the costs of the trial. The foundation
of
this argument is to be found in the management of the application for
the appointment of the plaintiff as
curator ad litem
and the
impact which that has on the costs.
[35] Summons was issued in this
matter on 21 October 2009. On 1 June 2011 the merits were settled
between the parties and an order
of this court issued. Dr Keeley
provided his report on 30 June 2011. On 15 August 2011 Dr Richard
Holmes wrote to the plaintiff’s
attorneys in which he recorded
as follows:
“
Blind,
neuropsychologically compromised and physically handicapped, Mr Nzayo
has been rendered a complete invalid. It is not believed
that he
would have appreciation for the litigation process or the financial
implications thereof. Under the circumstances the appointment
of both
the
curator
ad litem
and a
curator
bonis
would be recommended.”
[36] On 17 August 2011 the
plaintiff’s attorneys filed a notice of set down advising that
the matter has been enrolled for
hearing on 8 March 2012. It was,
however, only on 6 February 2012 that the plaintiff’s attorneys
launched an application
for the appointment of a
curator ad litem
to report to this court. Such an order was obtained on 21 February
2012 and Advocate Gajjar was appointed in order to report to
this
court,
inter alia
, on whether a
curator ad litem
ought
to be appointed to assist Nzayo in the action instituted by him
against the respondent for damages arising out of the motor
vehicle
collision in which he was involved on 16 June 2005. Advocate Gajjar
reported on 6 March 2012. It was only on 8 March 2012,
the day of
trial, that the plaintiff moved an application for the appointment of
the
curator ad litem
for this purpose. This necessitated the
postponement of the trial to 9 March 2012 to enable the newly
appointed
curator ad litem
to acquaint himself with the
issues.
[37] In these circumstances Mr
Paterson
argues that the plaintiff should be awarded
the costs of only one day of trial. It is readily apparent from the
aforegoing that
all the medico-legal reports which formed the
evidential basis for the evaluation of the claim had been admitted.
Mrs Nzayo testified
very briefly merely confirming much of the
content of the reports. The trial was completed in an hour and a
half. It is therefore
clear that had an application been timeously
made for the appointment of a
curator ad litem
the trial would
have been finalised on 8 March 2012. In these circumstances I think
that there is merit in Mr Paterson’s
submission that the
plaintiff should be awarded the costs of action, excluding the second
day of trial.
[38] In the result I make the
following order:
1. The defendant is ordered to pay
to the plaintiff the amount of R1 765 059,70 as and for
damages.
2. The defendant is ordered to pay
interest on the aforesaid amount calculated at the rate of 15,5% per
annum from a date fourteen
(14) days after the date of this order
until the date of payment.
3. The defendant is ordered to
furnish to the plaintiff an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, for payment of 80% of Mr
Nzayo’s costs of future accommodation in a hospital or nursing
home or treatment of or rendering
of a service or supplying of goods
to him arising out of the collision in which he was involved on 16
June 2005, after such costs
have been incurred and upon proof
thereof.
4. The defendant is ordered to pay
the plaintiff’s costs of suit excluding the second day of
trial, as taxed or agreed, such
costs to include:
4.1. The qualifying expenses, if
any, of the following:
1.1 Dr Keeley;
1.2 Dr Gardiner;
1.4 Dr Mackenzie;
1.5 Ms Ansie van Zyl;
1.6 Dr Holmes;
1.7 Mr Williams;
1.8 Dr Plunkett;
1.9 Dr van Dyk;
1.10 Mr Jacobson.
4.2 The costs occasioned by the
appointment of and services rendered by a
curator bonis
, in
the event that a
curator bonis
is appointed.
4.3 The costs of the
curators ad
litem
.
5. The defendant is ordered to pay
interest on the plaintiff’s taxed or agreed costs calculated at
the rate of 15,5% per annum
from a date fourteen (14) days after
taxation, alternatively the date of agreement, to the date of
payment.
_________________________
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For Plaintiff:
Adv L Schubart
SC instructed by Gray Moodliar Attorneys, Port Elizabeth
For Defendant:
Adv Paterson
instructed by Boqwana Loon & Connellan, Port Elizabeth