About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2024
>>
[2024] ZAECMKHC 7
|
|
Phambaniso obo L.F v Road Accident Fund (3755/2018) [2024] ZAECMKHC 7 (23 January 2024)
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
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE NUMBER.:
3755/2018
In
the matter between:
ZAMIQHINGA
JOSEPH PHAMBANISO obo
L[…]
F[…]
Plaintiff
And
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
Beshe
J
[1]
Plaintiff instituted a claim against the
defendant for damages arising out of a motor vehicle accident
that
occurred on the 27 July 2007.
[2]
On 29 April 2022 the defendant was adjudged
to being liable for payment of all (100%) of plaintiff’s
proven
or agreed damages.
[3]
I am now called upon to determine the
appropriate quantum of the damages the plaintiff is entitled
to. The
damages sought fall under two heads:
(i) General damages in
respect of which R1 200 000.00 was initially sought.
However, in argument it was submitted that
same are to be determined
in a sum that is between R600 000 and R800 000.00.
(ii) Future loss of
earnings in the sum of R2 147 370.00 as per the actuarial
report.
[4]
The evidence upon which such determination
is to be made appears to be common cause and emanates, to
a large
extent, from expert reports that were filed by the plaintiff. No
expert reports were forthcoming from the defendant.
[5]
The plaintiff was four years old and a
pedestrian when she was hit by a vehicle as a result of which
she
sustained, inter alia the following injuries:
Bruises on the sculp.
Swollen upper lip.
Bruises on the left leg
and right buttock.
Fracture of the left
humerus.
[6]
The contents of plaintiff’s expert
reports were succinctly summarised in plaintiff’s brief
heads
of argument as follows:
Dr. J.J. Schutte RAF4
Serious Injury Assessment Report: According to report plaintiff’s
whole person impairment amounted to
15%. That however, the plaintiff
suffered long-term impairment which could cause loss of bodily
function. Has severe long-term
behavioural disturbance disorder.
Dr. L.F. Oelofse, an
Orthopaedic Surgeon diagnosed plaintiff as having sustained a
laceration on her left parietal area and a swollen
lip;
a sprained right
shoulder;
sprained right knee;
bruised left leg and
right buttock;
head/facial injury with
chronic headache;
painful eyes;
residual neurological
symptoms;
residual psychological
symptoms;
slightly visible
scarring.
According to Neurosurgeon
Dr. Aswegen, plaintiff suffered mild to moderate traumatic brain
injury. This was also confirmed by Counselling
Psychologist Dr. Rita
Du Plessis, who also opined that this injury could contribute to
cognitive difficulties in mood and behaviour.
Ms. Prinsloo, an
Educational Psychologist concluded that but for the accident and the
sequelae thereof plaintiff would have been
able to obtain a NQF 5
education, but as a result of the accident will only be able to
obtain NQF 3 educational outcome.
Same is confirmed by Dr.
E.J. Jacobs. Both explain their findings.
This has also been the
basis for the actuarial report which is to the effect that
plaintiff’s earning capacity would but for
the accident, have
been R72 100 000.00 per annum from age 21 to R143 440.00
per annum at age 45. In her injured
scenario it will be R12 012.00
per annum totalling R2 147 370.00 of loss of earnings.
[7]
General damages pertain to non-patrimonial
loss which in the case of a delict or delictual liability
relates to
inter alia: pain, suffering, shock, loss of amenities of life,
disfigurement etc. Based on the injuries plaintiff sustained
as a
result of the accident and the period she spent in hospital (about
one week), there is no doubt that she experienced pain,
shock, loss
of amenities of life etc.
[8]
Ms Futshane who appeared for the defendant
submitted that the amount sought in respect of general damages
was
excessive as plaintiff only suffered: a mild to moderate brain/head
injury with no apparent permanent or long-term sequelae
and no extant
scarring as a result of the accident. She further submitted that in
the circumstances an amount of R450 000.00
as and for general
damages would be reasonable. As for damages for future loss of
earnings, Ms Futshane conceded that without defendant
having filed
its own actuarial reports, it will be difficult to argue but
submitted that based on the reports submitted, there
was no evidence
that plaintiff’s academic performance was altered by the
accident in anyway or evidence to show that she
would have attained
an NQF 5 level of education.
[9]
In my view, the fact that plaintiff was only
four years old when the accident occurred, and had not
started
school, entails that there is no point of reference as to how she was
performing before the accident. She only started
attending creche in
2001 when she was five years and eight months, over a year after the
accident. Be that as it may, it is common
cause that plaintiff is not
performing well academically. In a report prepared by a Neurosurgeon
Dr. van Aswegen, in 2018, the
plaintiff is reported to have been
complaining of headaches at least three to four times per week. The
headaches start when she
is at school and needed to concentrate. She
also complained of poor short-term memory, lack of concentration,
excessive sleepiness
and tiredness. Dr. van Aswegen opined that these
symptoms were indicative of long-term sequelae of a traumatic head
injury and
that she is not likely to reach her full potential. Based
on the fact that as a result of her injuries, plaintiff is not
expected
to reach her full potential. She might only be able to find
a lower paying job in future as opposed to her career and earnings
progressing to those of a semi-skilled worker. As I understand the
actuarial calculations, the amount arrived at constitutes the
difference between what the plaintiff would have earned had the
accident not occurred and what she is likely to earn post injury.
I
can find no reason why the evidence of plaintiff’s experts
including that of the actuary as embodied in their reports should
not
be accepted.
[10]
Both parties referred me to a number of comparable cases
regarding awards for general damages. Whilst these examples
will be
used for some guidance, both parties seem to acknowledge that they
should not dominate the enquiry or my assessment and
consequently the
exercise of my discretion in this regard. I have no doubt had regard
thereto, in broad sense, whilst taking into
account the unique
features of the injuries sustained by the plaintiff and the extent
thereof. Having considered the circumstances
under which the accident
occurred, plaintiff’s personal circumstances, including her age
then and currently as well as the
injuries she sustained and the
effect thereof on her life, I am of the view that an amount of
R500 000.00 will be a fair and
adequate compensate in respect of
her general damages.
[11]
In the result and for the reasons stated above, the
following order will issue:
(a) The defendant is
ordered to pay to the plaintiff an amount of R500 000.00 as and
for general damages.
(b) The defendant is
ordered to pay the plaintiff an amount of R2 147 370.00 as
and for future loss of earnings.
(c) The defendant is
ordered to pay costs incurred by plaintiff subsequent to the court’s
order on 29 April 2022 regarding
liability. Such costs to include the
qualifying expenses and attendances of the following experts:
Ms. E. Prinsloo.
Dr. A. van Aswegen.
Dr. E.J. Jacobs.
Dr. L.F. Oelofse.
Dr. Schutte.
Dr. R. du Plessis; and
Munro Forensic Actuaries.
Costs of Senior Counsel
and plaintiff’s attorney’s costs of travel and
accommodation.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Plaintiff
Adv:
D. H. De La Harpe SC
Instructed
by
WHITESIDES
ATTORNEYS
53
African Street
MAKHANDA
Ref:
Mr Nunn/sw/C11954
Tel.:
046 – 622 7117
For
the Defendant
Ms V.
Futshane
Instructed
by
STATE
ATTORNEY
27
Fleet Street
EAST
LONDON
Ref.:
F[…], L/Z04/VJ/bx
Tel.:
066 856 7244
Date
Heard
9
October 2023
Date
Reserved
9
October 2023
Date
Delivered
23
January 2024