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[2023] ZAFSHC 314
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Kuku v Road Accident Fund (232/2015) [2023] ZAFSHC 314 (11 August 2023)
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,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
number: 232/2015
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
KUKU,
MABOROKU
ALICE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
10
MARCH 2023
CORAM:
JONASE AJ
The judgment was handed
down electronically by circulation to the parties’ legal
representatives by email and released to
SAFLII on 11 AUGUST 2023.
The date and time for hand-down is deemed to be 11 AUGUST 2023 at
11h00.
Introduction
[1]
On 19 January 2015, the plaintiff issued a summons against the
defendant arising out of a motor
vehicle accident that took place on
or about 24 August 2012.
The facts
[2]
Plaintiff alleges that on or about 24 August 2012 at Botshabelo, a
motor collision occurred, and
the plaintiff was a passenger in a
motor vehicle with registration number DJM […] driven by the
insured driver. The collision
was caused by the sole negligence of
the insured driver.
[3]
As the results of the said collision plaintiff sustained the
following bodily injuries;
a)
Skull fracture
b)
Left external haemorrhage.
c)
Facial bones fracture
d)
Cervical vertebrae 3 fracture
[4]
Plaintiff received treatment at Universitas Hospital Complex,
Bloemfontein and a medical report was
prepared by one Dr Francois Van
Niekerk. It would appear that plaintiff was hospitalised during the
medical treatment and would
undergo further medical treatment in
future. Plaintiff was unable to work as efficiently as she did prior
to the accident. Plaintiff
experienced pain and suffering and will
experience future pain and suffering due to the injuries she
sustained.
[5] At
the time of the said accident, plaintiff was 28 years old. It appears
that the other issues were
settled between the parties and the only
outstanding issue is the quantification of the general damages.
Plaintiff in her amended
particulars of claim, sues for an amount of
R 2 500 000-00 for general damages framed as pain, suffering and
loss of amenities
of life.
[6] The
parties agreed that they will not lead any oral evidence but will
address the court and make submissions
based on the relevant medical
reports duly filed of record.
[7]
When this matter was heard, plaintiff was 36 years old. It was
submitted that plaintiff, at the time of the
accident, was employed
as a machine operator at a plastic producing factory. She was taken
to hospital and remained unconscious
for 3 (three) days. Plaintiff
could not remember what happened to herself. She was in pains with
head injuries, facial bones fracture
and left external haemorrhage.
She regularly visited the doctor and remained unemployed as the
results of the accident. Her left
eye is blurry and she experiences
constant head aches. As the results thereof she cannot be left alone
at home. Another person
must be there to take care of the plaintiff.
Expert evidence
[8]
Plaintiff relies on the orthopaedic report dated 14 March 2016 by Dr
JF Ziervogel. The said report refers
to the injuries sustained as
contained in the medical report. It records present complaints as;
a)
HEAD: She gets attacks of the head on a
daily basis. It feels as if the head ache is filling the whole of her
head. It is a continuous
headache. She takes Brufen for the headache.
Sometimes the headache is accompanied by a disturbance of a vision of
the left eye.
Sometimes the pain feels as if it goes behind the eye
and sometimes it is in frontal area. Sometimes she experiences
vertigo before
the headache starts. Sometimes the headache makes her
nauseous. She feels sleepy when the headache abates.
b)
NECK: She indicates the point of most pain
in the neck in the mid cervical area. It is worse when she lies down
and better when
she moves around. Her neck does not feel stiff. The
pain is confined to the neck. Sneezing aggravates the pain. She does
not get
any paraesthesia. Her arms and hands do not feel weak.
c)
Examination of the head: there is a scar on
the head that stretches from the frontal area in an arc across the
frontal part to the
above left ear. The front part of the scar is
drawn in. It is tender. The pupils are equal in size and they react
normally and
symmetrically to the light. She has no nystagmus. The
muscles of expression react normally and symmetrically to commands.
d)
Examination of the neck: She carries her
head to the front. She indicates the point of most pain at the base
of the neck and on
the left side in the muscles. There is tenderness
when pressing in the middle line at the level of the C3 and C4
levels. The tone
of the muscle appears to be normal.
e)
The activities she cannot do anymore: She
is very forgetful. She cannot carry heavy things anymore and she
cannot bend anymore.
f)
Conclusion: The patient sustained serious
injuries which were treated. From the orthopaedic point of view the
normal life expectancy
is not adversely affected by the injuries, A
neurosurgeon may have a different opinion.
[9] The
Neurosugeon report is compiled by Dr Jaap Earle on 3 December 2014.
On injuries the following is noted;
a)
She had head injury with multiple facial
fractures including fractures of the left orbit and the zygoma
treated conservatively.
She had fractured the anterior of the body of
the third cervical vertebra but there was no neurological deficit
from this source.
She had developed a brain injury with a depressed
fracture in the left posterior temporal region with underlying
confusion and
a diffuse component.
b)
He did not see the scan but Glasgow Coma
Scale on arrival in the Universitas hospital was given as 15/15 l.e.
on the day of the
accident. One would guess from this that she
suffered no other injuries than a mild traumatic brain injury which
means that in
the longer run she could probably make a good recovery
from whatever happened. As it was developed a complication of an
extradural
haematoma of 19mm thickness combined with a subdural
haemorrhage and although this was expeditiously and quickly dealt
with by
craniotomy it is very likely to get long term intellectual or
cognitive deficits with an increased risk of post-traumatic epilepsy.
c)
In conclusion: the young woman suffered
what could have been even a mild traumatic primary brain injury but
certainly aggravated
by the effects at the extradural haematic to be
regarded as a direct complication. This was dealt with timeously but
I do believe
that there are some less obvious changes in her
personality which makes it difficult for her to return to work and
this must be
assessed. The neck must also be treated. She has no
problems from the facial fractures which were effectively treated
conservatively.
[10]
The Defendant submitted and conceded that no expert reports on its
side were filed but will rely on the plaintiff’s
expert
reports. Defendant submitted that the WPI is 0% but the latest WPI
submitted by the memo after the HPCSA has declared the
injury “
as
Serious
”.
Legal Principles
[11]
Section 17(1) Act
inter
alia
provides that Fund shall, –
‘
be
obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of any
bodily
injury … caused by or arising from the driving of a motor
vehicle by any person at any place within he Republic,
if the injury
… is due to the negligence or other wrongful act of the driver
or of the owner of the motor vehicle or of
his or her employee in the
performance of the employee’s duties as employee: Provided that
the obligation of the Fund to
compensate a third party for
non-pecuniary loss shall be limited to compensation for a serious
injury as contemplated in subsection
(1A) and shall be paid by way of
a lump sum
’
.
[12]
Legodi
v Road Accident Fund
[1]
the
court stated the following:
“
[50]
General damages include a person's physical integrity, pain and
suffering, emotional shock, disfigurement,
a reduced life expectancy,
and loss of life amenities.
[51]
The case of
Hendricks
v President Insurance
[4]
and
the authors
Visser
and Potgieter
Skadevergoedingsreg
(2003) 97 provide that the nature of the general damages to be
awarded make quantifying the award a complex
task. This is because of
the personal, non-pecuniary, and subjective nature of these
interests, which make it difficult to quantify,
but remains
recoverable.
[5]
[52]
To qualify as a serious injury three steps must be undertaken by the
medical practitioner.
Firstly, to apply the non-serious injury
criteria list; secondly, the methodology is contained in the
American
Medical Association’s Guides to the Evaluation of Permanent
Impairment (AMA Guide);
and thirdly, the methodology as set
out in the narrative test. In this matter, the plaintiff crossed the
threshold of meeting
the requirements of "
serious damages
"
by the expert reports.
[53]
The plaintiff in
the
De
Jongh
[6]
matter
sustained a head injury consisting of extensive fragmented fractures
of the frontal skull extending into the orbits (eye
sockets) and the
zygomatic arches -cheekbones, as well as the jaw, causing extradural
haematoma which led to unconsciousness and
which had to be surgically
removed. Importantly, in this matter the SCA, quoting Holmes J,
also pointed out the following
fundamental principle relative to the
award of general damages:
“
that the award
should be fair to both sides, it must give just compensation to the
plaintiff, but not pour largesse from the horn
of plenty at the
defendants’ expense
.”
[54]
In
Mashigo
v Road Accident Fund
[7]
Mr.
Justice Davis summarises the well-known approach to general damages
and the use of previous comparable awards as follows
:
"[10] A claim for
general or non-patrimonial damages requires an assessment of the
plaintiff's pain and suffering, disfigurement,
permanent disability,
and loss of amenities of life and attaching a monetary value thereto.
The exercise is, by its very nature;
both difficult and discretionary
with wide-ranging permutations. As will be illustrated herein later,
it is very difficult if not
impossible to find a case on all four
with the one to be decided. The oft-quoted case of Southern
Insurance Association v
Bailey NO
1984
(1) SA 98
AD
confirmed that even the Supreme Court of Appeal had difficulties in
laying down rules as to how the problem of an award for general
damages should be approached. The accepted approach is the "flexible
one" described in Sandler v Wholesale Coal Suppliers
Ltd
1941
AD 194
at
199, namely: the submissions were "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 on the Judge's view of what is fair in all the
circumstances of the case"."
[11] Of course, awards
in cases that show at least some similarities or comparisons are
useful guides, taking into account the current
value of such awards
to accommodate the decreasing value of money. See inter alia: SA
Eagle Insurance Co v Hartley
[1990]
ZASCA 106
;
1990
(4) SA 833
(A)
at 841 D and the practical work of The Quantum Yearbook by Robert J
Koch which includes tables of general damages awards annually
updated
to cater for inflation.
[12] In respect of the
issue of comparable cases and the guidance provided thereby, the
Supreme Court of Appeal has stated in Protea
Assurance co Ltd v
Lamb
1971
SA 530
at
536 A - B: "Comparable cases, when available, should rather be
used to afford some guidance, in a general way, towards assisting
the
Court in arriving at an award which is not substantially out of
general accord with previous awards in broadly similar cases,
regard
being had to all the factors which are considered to be relevant in
the assessment of general damages. At the same time,
it may be
permissible, in an appropriate case, to test any assessment arrived
at upon this basis by reference to the general pattern
of previous
awards in cases where the injuries and their sequelae may have been
either more serious or less than those in the case
under
consideration".
[55]
The court in these cases has discretion. However, this discretion is
not restrained by a relentless
tariff drawn from previous similar
awards. When assessing such damages the factors must be
considered in totality. Naturally,
courts are assisted by
sufficiently comparable case law which can be used as a yardstick to
assist the court in arriving at an
appropriate award.
[56]
Counsel referred me to several comparable cases enlisted below.
However, each case must be adjudicated
on its own merits within the
overarching maxim of
stare
decisis
.
In the case Van Heerden J in
Dikeni
v Road Accident Fund
[8]
stated
“
Although these
cases have been of assistance, it is trite law that each case must be
adjudicated upon on its own merits and no one
case is factually the
same as another…… previous awards only offer guidance
in the assessment of general damages.
”
[10]
Counsel for the plaintiff argued that the plaintiff is entitled to a
fair and reasonable compensation.
Plaintiff claimed an
amount of R2 500 000-00 in respect of general damages.
Counsel referred to the case of
Mxolisi
Mngani v Road Accident Fund
[2]
the principle of law has been recitated in
Legodi
judgment
above. It is important also to note the long-standing principle that
counsel referred to in the case of
Mair
v General Accident Fire and Life Assurance Corporation
[3]
,the learned Judge of Appeal stated as follows;
“
In
cases of this nature, it seems to me that the most important feature
to consider is the long-term effect of the injuries suffered
by the
person in question, that is to say, the permanent disability and the
loss of amenities which arise from that permanent disability.
This
regard much depends on the trial court’s impression of the
disability suffered by the person concerned where he trial
court has
had the advantage of seeing the person concerned, watching his walk
and of assessing the degree of agility which he exhibits
,
notwithstanding his disability
.”
[11]
Counsel for the plaintiff further referred to comparable case law as
a guide for consideration in order for
this court to come to
appropriate amount to be awarded to plaintiff as follows;
a)
BV v Road Accident Fund 2021 (8A4) QOD 5 (FB)
the plaintiff
sustained a traumatic brain injury with also neck and back injuries.
He was left with serious neurological deficits
and his condition was
diagnosed as not only permanent but is likely to deteriorate due to
frontal lobe injuries. Plaintiff suffers
from behavioural and
emotional disorders and presented with severe impairments in memory
and concentration and his cognitive abilities
were severely impaired.
In addition to the aforesaid he suffers from constant back pain
complains of headaches and neck pain. He
has lost his ability to do
things he enjoyed doing before the accident and will never be able to
work again. This court awarded
a sum of R 1 100 000-00 in 2020
which is by estimation translated to an amount of R 1 200 000-00
in today’s
monetary value.
b)
WV v Road Accident Fund
2019 (7A4) QOD 113 (FB) the plaintiff
sustained a traumatic brain injury with the base of the skull
fracture and pons bleed, mandible
fracture, right lower leg, tibia
and fibula fractures. He went to theatre for an open reduction and
internal fixation of his right
tibia/fibula fractures, he complained
of headaches and has behavioural and emotional disorders (aggressive,
forgetful, depressed,
isolates himself and foul language). He
complains of his right eye having double vision, his jaws hurt when
he chews, he struggles
with soft food as well. He experiences pain
and discomfort in the right knee joint and lower right leg. He walks
with painful gait,
he cannot walk unaided and using a walking stick.
The plaintiff is permanently disabled with significant mental and
physical impairment.
He will need constant supervision and his
career, social and family life is destroyed . This court awarded
general damages in the
amount of R 2 100 000-
00 in 2019 which is by estimation translated to an amount of R
2 150 000-00 in today’s monetary value.
c)
Mngani v Road Accident Fund
above, wherein the plaintiff
sustained brain damage, laceration on the occipital area of the
skull, injury on the lumbar and pelvis,
fracture on the humerus the
brain damage caused serious behavioural problems and coupled with
neurocognitive deficits and intellectual
impairment. Plaintiff was
deprived of vocational and employment opportunities. That court
awarded R 458 385-00 in 2010 which
is by estimation translated
to an amount of R 800 000-00 in today’s monetary value.
d)
Pietersen obo JST v Road Accident Fund
2012 (6A4) QOD 88 (GSJ)
a child sustained a significant brain injury resulting in seizures
and cognitive deficits, inability to
pass grade 12 in the mainstream
academic environment and a vulnerable candidate in the open labour
market. Experts agreed that
he ought to be placed in a school for
learners with special educational needs. His future earning capacity
was compromised. That
court awarded an amount of R 750 000-00 in
2021, which is by estimation translated to an amount of R 1 250
000-00 in
today’s monetary value.
e)
Minnie NO v Road Accident Fund
2012 (6A4) QOD 82 (GSJ) a
5-year-old girl sustained a severe head injury with serious degloving
injuries requiring repeated surgery
and causing a permanent and
extensive disfigurement. Neurocognitive deficits associated with poor
memory and language difficulties.
Special schooling required.
Functionally unemployable in the future and limited to work in a
sympathetic or sheltered environment.
That court awarded an amount of
R 800 000-00 in 2010 which is by estimation translated to an
amount of R 1 400
000-00 in today’s monetary
value.
[12]
Counsel for plaintiff argued that taking the above cases and numerous
others (not mentioned) into account,
he is of the opinion that an
amount of R 2 500 000-00 would constitute a
fair and reasonable amount in respect
of the plaintiffs claim for
general damages in this matter. As such he will move for prayers
1,2,3 and 4 of the particulars of
claim.
[13] It
was argued on behalf of the defendant that the following comparable
case law be considered for an appropriate
order as follows:
a)
Schutte v Road
Accident Fund
(378/2009) [2019] ZANCHC
8 (8 March 2019)
plaintiff,
who at the time was 20 years old, sustained certain bodily injuries
as a result of a motor vehicle accident which occurred
on 6 March
2004. He suffered from severe headaches; his personality had changed
in that he had become aggressive and rude.
He suffered from
memory and concentration impairment. His career prospects have
been limited and his ability to learn new
skills have been
compromised. There was apportionment of 50%. General damages were
awarded in the amount of R 350 000-00.
b)
Malangabe v Road
Accident Fund
(49658/2018) [2022]
ZAGPPHC 156
(15 March 2022)
Regarding
the award of general damages the court found that the amount of
R400 000 is appropriate. The court found this matter
distinguishable from those the court was urged by counsel to
consider. The matter of
Ngubeni v
Road Accident Fund
2017 (7A4) QOD
68 (GJ) concerned a 13-year-old boy who suffered mild to moderate
brain injury and orthopaedic injuries. The
brain injury is comparable
to that of the plaintiff in this matter, being a mild traumatic brain
injury. Apart from the age, the
injuries and/or
their
sequelae
in
Ngubeni
exceed
in effect those of the plaintiff in this matter. The matter of
Vukeya
v Road Accident Fund
2014 (7B4)
QOD 1 (GNP) concerned a claimant whose age (i.e. 43-year-old woman)
correspond with the plaintiff (who was 45 years
old at the time
of the trial) in this matter. But the injuries and
their
sequelae
in
Vukeya
slightly
differ with those in this matter, especially the chronic headaches
and depression.
c)
Ngubeni v
Road Accident Fund
(18275/2015) [2016]
ZAGPJHC 349 (24 November 2016) the uncontested evidence is that 13
years old suffered a mild to moderate brain
injury and orthopaedic
injuries.
Although described as mild,
the
sequelae
of
the brain injury were of a moderate to severe nature. The orthopaedic
injuries have resulted in the minor child not being
able to play
soccer or ride his bicycle anymore. The medico-legal reports
and joint minutes clearly spells out the problems
and difficulties
the minor child will experience in future and what he had been
through since the accident. An award of R600
000,00 for general
damages will be fair and reasonable. The defendant, in this matter,
argued that the said amount is estimated
at R 800 000-00 in
today’s monetary value.
d)
Thozamile v Road Accident
Fund
(3022/2020) [2022] ZAFSHC 307 (31
October 2022)
the
plaintiff sustained severe traumatic brain injury and was treated
following head injury. T
he
Plaintiff mainly suffered from headaches, memory problems, mood
disorder, difficulty eating, lumbar spine pain and left leg pain. The
deceased was 55 years old at the time of the collision and 58 years
old, at the time of his demise (after
litis
contestatio
),
an amount of R650 000.00 is a fair and reasonable award for the
non-pecuniary loss suffered by the claimant,
as a result of the injuries sustained ad it's sequalae.
e)
Makupula v Road Accident Fund
(1635/07)
[2010] ZAECMHC 17 (8 April 2010). The minor child
was
five years old when he was struck by a slow moving motor vehicle on
11 June 2007. Due to post concussional syndrome that developed
from
brain injury the child suffered headaches every 1 to 2 days in a
week; but these headaches resolved within 18 months after
the
accident. The court awarded an amount of R 300 000-00 for
general damages.
The defendant, in
this matter; argued that the said amount is estimated at R 550 000-00
in today’s monetary value.
[14]
The defendant, in this matter, never filed its own expert reports but
relied upon plaintiff’s expert
reports. It also indicated that
such reports are old and the defendant indicated that it tenders an
amount of R 650 000-00
as a fair and reasonable award for
general damages herein.
[15] I
have considered the comparative law stated above and found that the
injuries sustained by the plaintiff
were either mild or severe in
comparison to the other cases indicated. I am of the view that the
just and equitable award to be
granted in this matter is R1
400 000-00.
[16] In
the circumstances, I make the following order:
ORDER
1.
The Defendant shall pay the Plaintiff the
capital amount of R R1 400 000-00 (One Million Four Hundred
Rand) for general
damages
2.
Payment will be made directly to the Trust
account of the Plaintiff’s attorneys of record details of which
are as follows:
LENGAU ATTORNEYS TRUST
ACCOUNT
FNB, BRANDWAG,
BLOEMFONTEIN
ACCOUNT NO: 6[…]
BRANCH CODE: 230 534
3.
Interest a
tempore
morae
shall be calculated in accordance
with the prescribed rate of interest Act 55 of 1975, read with
Section 17(3)
(a) of the
Road Accident Fund Act 56 of 1996
, 180 (one
hundred and eighty) days from the date of this Order.
4.
The Defendant shall pay the Plaintiff’s
taxed or agreed party and party costs on the High Court scale, such
Costs shall include
the costs of the Counsel and reasonable
preparation fees.
5.
5.1.
The party and party costs, as agreed or
taxed, shall be paid by Defendant directly into the Trust account of
Lengau attorneys for
the benefit of Plaintiff.
S.S. JONASE, AJ
On
behalf of the Plaintiff:
Adv.
VM MOROBANE
Instructed
by:
LENGAU
Attorneys
BLOEMFONTEIN
On
behalf of the Defendant:
Ms
M BOOYSEN
Instructed
by:
STATE
Attorney
BLOEMFONTEIN
[1]
(50948/17)
[2021] ZAGPPHC 566 (2 September 2021)
[2]
Case
number: 09/2008 dated 21January 2010 (ECM)
[3]
1970
(3) SA 25
(RAD) AT 29-30 A