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2023
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[2023] ZAFSHC 391
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Schutte v Road Accident Fund (2159/2022) [2023] ZAFSHC 391 (12 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: 2159/2022
In
the matter between:
JEANETTE
JACOBA PETRONELLA SCHUTTE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
MTHIMUNYE
,
AJ
HEARD
ON:
01 AUGUST
2023
DELIVERED
ON:
12 OCTOBER 2023
[1]
In this claim for damages against the Road Accident Fund arising from
a motor vehicle accident which occurred on
05 August 2020, merits
were conceded one hundred percent in favour of the Plaintiff as she
was a passenger. Prior to the commencement
of the trial, the parties
settled loss of earnings for R60 421.90 (Sixty Thousand Rand,
Four Hundred and Twenty-One Rands,
Ninety Cents). They agreed that
the claim for past medical expenses be separated in terms of Section
34(4) and postponed. What
was brought before this court to determine
was the claim for general damages for pain and suffering, loss of
amenities of life
and disability. The Plaintiff claimed R800 000.00
(Eight Hundred Thousand Rand) for general damages and during
argument, Counsel
for the Plaintiff argued that a reasonable offer
should be between R550 000.00 and R600 000.00. It was
submitted, on
the other hand, by Counsel for the defendant that an
amount of R450 000.00 was reasonable compensation on this case.
This
is what this court is called upon to determine.
[2]
The Plaintiff, a 68-year-old was injured in a motor vehicle accident
on 05 August 2020. She sustained a head
injury, open wound on
the right side of the head, open fracture on the left elbow, neck and
back injury, lacerations on the back
of the head, abrasions on the
chin, ligament injuries to the left elbow, scarring to the left elbow
and chronic pain syndrome.
For purposes of general damages, it
is noteworthy to state that the Plaintiff has a pre – accident
medical history
of hypertension, back surgery, tonsillectomy,
appendectomy and caesarean section.
[3]
The expert medico-legal reports of the Plaintiff were, by agreement
between the parties, admitted into evidence
in terms of Rule 38(2) of
the Uniform Rules of Court. Dr L F Oelofse, the Orthopeadic Surgeon’s
report highlighted recurring
headaches, episodes of dizziness,
forgetfulness, neck and back pain accompanied by muscle spasms,
numbness in hands and pins and
needles in her right leg and left
elbow pain as the sequelae to the injuries sustained by the
Plaintiff. Dr N P Metuse, the
Plastic and
Reconstructive Surgeon highlighted a scar on the left forearm. It was
submitted that the scars have healed, even
though one is hypo
pigmented, there are no keloids or hypertrophic scarring present.
Although there is functional impairment, it
was admitted that such
cannot be attributed to the scars as scars do not cause contractures.
Even though the scar has healed the
Plaintiff is not able to fully
extend her arm. The scarring is visible and permanent as it is to
amenable to surgical treatment.
The other expert reports related to
the loss of earnings and capacity to work which in my view are not
relevant for purposes of
general damages as the loss of earnings
claim was settled.
[4]
It was submitted that the Plaintiff has three jobs i.e. she is an
Administrator for her church, doing part-time
ironing for her
daughter for payment and runs a children’s aftercare facility.
She finds the movement of the hands difficult
and will need an elbow
replacement and a neck fusion which are high risk operations. She has
sustained serious and permanent disfigurement
and long-term
impairment or loss of bodily function. Counsel for the Defendant
argued that this is as a result of age and pre-existing
back injury
and a previous medical history not related to the accident. Counsel
for the Plaintiff stated that although the Plaintiff
had this
history, in terms of the expert reports 70% of the neck and back pain
can be attributed to the accident hence the 30/70%
apportionment in
favour of the plaintiff.
[5]
The
objective of an award for general damages is to compensate a claimant
for the pain, suffering, and loss of amenities of life
to which they
suffered as a result of injuries sustained in a motor vehicle
accident. The determination thereof is largely a matter
of the
court’s discretion but the court can seek guidance in previous
awards made in comparable cases. Past awards in comparable
cases
afford a useful guide in determination of general damages. The
comparison is not meant to be a meticulous examination and
should
never interfere with the court's discretion -
Protea
Assurance v Lamb
1971
(1) SA 530
(A)
at 535H-536A).
To serve as a proper basis for comparison, previous awards should be
updated to present day values.
[6]
The Plaintiff referred to the case of
Mohlaba v Road Accident Fund
2016 (7D4) QOD 1 (GNP)
where the claimant suffered similar
injuries and loss of sensation in his small and ring fingers and loss
of some intrinsic hand
functions. He suffered significant loss of
working capacity and had depression. The original award was
R540 000.00 which Counsel
for the Plaintiff argued that the
current value is R804 000.00. Other cases referred to by
the Counsel for the Plaintiff.
which he argued were comparable to
this case were
Twala v Road Accident Fund 2011 (6D$) QOD 1 (GNP),
where a 24-year-old unemployed male sustained a fracture of the
left radius and ulna, head and shoulder injuries and a blow on the
right knee. He lost substantial power and rotational movement in the
left arm. He was awarded R250 000.00, currently valued
at
R484 000.00. Counsel for the Plaintiff further referred to
Nhantumbo v Road Accident Fund 2014 (7C5) QOD 12 (GSJ
where a
49 year old panel beater suffered soft tissue injuries on the lumbar
and cervical spine and lacerations on the left hip.
He was in pain
and loss his ability to stand and bend for long, neither could he sit
or walk for long. he was awarded a current
value of R330 000.00.
The Plaintiff further referred to
Naude v Road Accident Fund 2013
(6C5) QOD 8 (GNP),
where a 38-year-old female attorney suffered
soft tissue injuries of the neck, back, shoulder, knee and hand and
lacerations of
the hand. She suffered residual symptoms in the neck
and thoracic lumber spine and was unable to walk long distances, sit
upright
or stand for long periods of time. She was awarded a current
value of R330 000.00.
[7]
Counsel for the Defendant referred this court to the case of
Lee v
RAF 2010 (LNQD) 17 GNP (check proper citations)
the plaintiff
suffered a neck, back and knee injuries, with a fractured elbow which
caused a limited range of elbow movement. His
back was tender and had
muscle spasm and scarring as result of the elbow operation. His
injuries were more severe that in this
case and the court awarded a
current value of R484 000.00. The Plaintiff further referred to
Matthee v Minister of Transport 1975 (2) CNB 548 (3),
where
the plaintiff had a forearm fracture, wrist dislocation eye cut.
Plates were inserted and later removed. She also developed
arthritis
and the court awarded an amount which can be valued in 2023 as
R283 000.00. In
De Jongh v Du Pisanie [2004] 565
(SCA),
the Supreme Court of Appeal cited Holmes J in Pitt v
Economic Insurance Co Ltd
1957 (3) SA 284
(D) at 287E-F where Holmes
J said
: '(T)he Court must take care to see that its award is fair
to both sides—it must give just consideration to the plaintiff,
but it must not pour out largesse from the horn of plenty at the
defendant's expense.'
.
[8]
In my view, the difference between the Mohlaba case which the
Plaintiff sought to use as a benchmark for this one,
is that Mohlaba
was a 22-year-old mechanic and had no previous existing conditions
whereas the Plaintiff in this case was 66 years
old at the time of
injury, had a pre-existing back injury. In Mohlaba case, no
apportionment was applied whereas in this case,
the Defendant has
applied a 30% pre-accident and 70% accident related apportionment in
respect of the Plaintiff’s neck and
back pain. The other cases
referred to by the Plaintiff’s Counsel fell below what the
Plaintiff is asking for in terms of
general damages and again, all of
them were in respect of younger claimants i.e. a 24-year-old
unemployed male (
Twala v Road Accident Fund 2011 (6D$) QOD 1
(GNP)
, a 48-year-old panel beater
(Nhantumbo v Road Accident
Fund 2014 (7C5) QOD 12 (GSJ),
and a 38-year-old female attorney
(Naude v Road Accident Fund 2013 (6C5) QOD 8 (GNP).
The court
awarded Twala R250 000, which Counsel for the Plaintiff
submitted the current value is R484 000.00; Nhantumbo
and Naude
a current value of R330 000.00.
[9]
Guided by these decisions and taking into consideration the facts of
this case and the age of the Plaintiff at the
time of the accident, I
am persuaded that Defendant’s estimation was more than
reasonable under the circumstances.
Consequently,
I make
the following order:
1.
The Defendant is liable for payment to the
Plaintiff in the amount of
R400 000.00 (Four Hundred Thousand Rand) in respect of General
Damages.
2.
The amounts referred to above is payable within
180 (One Hundred and
Eighty) days from the date of this order, into the Trust Account of
the Plaintiff’s Attorneys.
3.
The Defendant shall pay the Plaintiff’s
taxed or agreed costs
on the scale as between party and party until the date of this order.
4.
Should the Defendant fail to pay the
Plaintiff’s party and party costs as taxed or agreed within 14
(fourteen) days from the
date of taxation, alternatively date of
settlement of such costs, the Defendant shall be liable to pay
interest at the prescribed
rate per annum, such costs as from and
including the date of taxation, alternatively the date of settlement
of such costs up to
and including the date of final payment thereof;
5.
The Plaintiff shall, in the event that the
parties are not in agreement as to the costs referred to in paragraph
4 above, serve
the notice of taxation on the Defendant’s
attorneys and shall allow the Defendant 14 (fourteen) court days to
make payment
of the taxed costs;
D.
P MTHIMUNYE, AJ
Appearances:
For
the Plaintiff
Adv C
G Jordaan
Mabula
Chambers, Pretoria
Instructed
by McIntyre & Van Der Post, Bloemfontein
For
the Respondent
Ms P
Banda
State
Attorney, Bloemfontein