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[2024] ZAFSHC 73
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H.P.F v Road Accident Fund (3214/2017) [2024] ZAFSHC 73 (11 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges: NO
Circulate
to Magistrates: NO
CASE NO: 3214/2017
In
the matter between:
H
P F[…]
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
04 OCTOBER 2023
CORAM:
JORDAAN,
AJ
DELIVERED
ON:
11
MARCH 2024
[1]
On the 16
th
of October 2016 HP F[…] (the
Plaintiff), then a minor 13year old, and his sister, was enjoying a
ride on the back of their
family bakkie on the road from Henneman in
the direction of Kroonstad, when their Nissan NP300 bakkie with
registration numbers
BDV[…] (the bakkie) was rear-ended. The
impact of the collision catapulted the Plaintiff off the back of the
bakkie onto
the tarmac road surface. The impact further propelled the
bakkie to ride over the left side of the Plaintiff’s body as he
was lying on the tarmac.
[2]
As a result of the accident, the Plaintiff suffered the following
injuries:
2.1
Fracture of the right clavicle
2.3
Fracture of the left humerus
2.4
Fracture of the left scapula
2.5
Fractured left rib
2.6 A
pneumothorax on left and right side
2.7 A
pulmonary contusion
2.8
Soft tissue injury to the left knee
2.9
Lacerations to the face
2.10
Anterior wedge fractures of T3 and T4
2.11 A
mild concussive head injury
2.12 A
crush injury
[3]
Action was
consequently instituted in terms of the provisions
of the
Road Accident Fund Act 56 of 1996
, as amended, to recover
damages.
T
he aspects of loss of earning
capacity and future medical treatment were settled on the 26
th
of August 2021 and in terms of
Rule 33(4)
separated from the claim
for general damages.
In the circumstances, the
only head of damages for determination by this court is the
plaintiff’s general damages
.
[4]
By agreement between the parties, the Plaintiff testified and
the expert reports of both parties were accepted as evidence. At
commencement
of the trial, the Plaintiff moved an amendment to
increase the claim for general damages to R1 500.00, to which
the Defendant
indicated they have no objection to such amendment but
that they will argue that the amount is exorbitant, the amendment was
accordingly
allowed.
[5]
The Plaintiff testified that he was taken up and treated in hospital
for approximately two weeks
as a result of the multiple injuries he
sustained in the accident. He testified that his ribs were broken of
which one rib punctured
his lung. It was his testimony further that
as a consequence of the bakkie driving over his shoulder and
fracturing it, he cannot
properly lift his left arm, he cannot lift
heavy items and he experiences pins and needles sensation and pain in
the arm. Because
of the knee injury he sustained, he cannot herd his
cattle as his knee pains and gives way as a result, he has to make
use a of
a quadbike to herd his cattle. He further testified that his
spine was injured in the accident causing backpains. During cross
examination it was his evidence that he left school after grade 10
because he could not carry his school bag on his back anymore
and the
pressure was too much, he thus elected to leave school and start his
farming career with the money he received as compensation.
[6]
Dr Enslin, an Orthopaedic Surgeon who examined the Plaintiff at the
instance of the Plaintiff,
reports that the Plaintiff sustained a
fracture of the right clavicle, a pneumothorax on the left and right
side, a soft tissue
injury to the left knee, a mild concussive
head injury, multiple abrasions over his left knee and lower legs, a
laceration
on his face, a fracture of the left proximal humerus, an
injury to the thoracic spine, a fracture of the left scapular, a
pulmonary
contusion, a crush injury and a fractured rib on the left
side
[1]
. Dr Enslin reports that
the Plaintive has pain and discomfort over his chest, upper back,
left knee, left shoulder and lifting
heavy objects exacerbate his
symptoms. The Plaintiff cannot carry his school bag due to the pain
and discomfort in the left shoulder.
The Plaintiff struggles to use
his left arm due to the loss of movement in his left shoulder
especially abduction and flexion of
the shoulder. The Plaintiff no
longer plays rugby. The Plaintiff struggles to lift his arm above
shoulder height.
[2]
[7]
The report of Dr Enslin further states that the Plaintiff has
unsightly scars over his chest,
both legs left knee and face, is very
aware of the scars and attempts to hide them. Dr Enslin reports that
the Plaintiff has symptoms
of post-traumatic stress and a depressed
mood. Dr Enslin reports that Plaintiff severe cosmetic disfigurement,
qualifying for general
damages in terms of the narrative test.
[3]
[8]
Dr Moloto, an Orthopaedic Surgeon who examined the Plaintiff at the
instance of the Defendant,
reports that the Plaintiff sustained a
head injury, fractures of the ribs on the left side, fracture of the
right clavicle, fracture
of the left humerus, injury of the
haemothorax. Dr Moloto further reported that the Plaintiff’s
present condition is sustained
moderately severe injuries to the
head, the left arm and the right clavicle, the chest and the left
knee. of Dr Enslin further
states that the Plaintiff has unsightly
scars over his chest, both legs left knee and face, is very aware of
the scars and attempts
to hide them. Dr Moloto reports that the
Plaintiff has symptoms of post-traumatic stress and a depressed mood.
Dr Moloto reports
that Plaintiff severe cosmetic disfigurement,
qualifying for general damages in terms of the narrative test. Dr
Moloto further
report that the Plaintiff now feels pain on exertion
of the left arm and that the Plaintiff has not over stated his
complaints.
Dr Moloto opines that the Plaintiff has recovered from
his injuries and has a good prognosis, no future orthopaedic
treatment will
be necessary.
[4]
[9]
Dr Moagi, an Occupational Therapist who consulted the Plaintiff at
the instance of the Defendant,
reports that the Plaintiff’s
father complained that he bought the Plaintiff a trolley bag as he
was unable to carry his schoolbag
due to left shoulder pain.
[5]
Dr Moagi reports that during the physical component assessment of the
Plaintiff the Plaintiff reported mild pain in the lower back,
the
Plaintiff had restricted movement in the upper limbs with pain and he
displayed an inconsistent asymmetrical pattern.
[6]
[10]
Dr Mutyaba, a Neurosurgeon who consulted the Plaintiff at the
instance of the Plaintiff, he opines that the
Plaintiff suffered a
mild traumatic brain injury with a resultant post-concussion
syndrome.
[7]
[11]
There was no dispute as far as the Plaintiff’s injuries and his
treatment were concerned, except
to clarify that it was the left and
not both the left and right shoulder that was fractured. In the
circumstances the Court accepts
the evidence of the Plaintiff. The
reports of the experts were further handed in by consent of the
Parties. In the circumstances,
those reports relevant to general
damages were taken into account and accepted. The only issue between
the Parties were the amount
to be awarded for general damages.
Accordingly, the Parties are ad idem that the Plaintiff sustained
serious injuries as a result
of the motor vehicle accident which
caused pain and suffering for which the Defendant is liable to
compensate.
[12]
The determination of an appropriate award for general damages
involves a consideration of the Plaintiffs
pain and suffering, loss
of amenities of life and applicable disabilities. The determination
is also factual, as it involves having
regard to all the relevant
facts and circumstances relevant to the Plaintive and the nature and
extent of his injuries. The permanency,
severity and the impact of
the injury sustained on the lifestyle of the Plaintiff form part of
the consideration. The discretion
of the court to award fair and
adequate compensation is wide.
[8]
[13]
The injuries that the Plaintiff sustained and the sequelae thereof
have been documented above. The Plaintive
sustained an array of
injuries and a multiplicity of orthopaedic injuries which not only
caused physical pain but also functional
impairment which he is still
grappling with, having testified and indicated in court the limited
extent to which he can lift of
his left arm, the remaining pangs of
pain during physical exertion and the remaining visible scars on his
face.
[14]
The plaintiff claimed an amount of R1 500 000,00 for
general damages and referred the court to a number of comparable
cases,
while the Defendant refered the Court to cases which in their
view are comparable cases in support of their submission that the
amount claimed is exorbitant. General damages is often determined by
comparing cases under scrutiny and those previously decided,
it is
generally accepted that previously decided cases are never similar
and that their purpose stops at comparing them to the
current.
[15]
The Plaintiff refered the court to the case of:
Claassens
v Road Accident Fund (35716/2016) [2019] ZAGPPHC 471
a 34-year-old male was involved in a motor vehicle collision. He
suffered several severe injuries including a moderate to severe
traumatic brain injury, rib fractures, lung contusions and lung
infection developed in ICU. Claassens suffered from chronic
headaches,
traumatic brain injury sequelae with loss of short-term
memory, chronic chest pain, severe surgical scaring, chronic lumber
backache
and an altered ability to work in the open labour market.
The court awarded general damages of R1 200 000,00 which is
equivalent to R1 412 000,00 in 2023.
Kruger
v Road Accident Fund (27383/2009) [2022] ZAGPPHC 73
the
Plaintiff suffered a skull fracture which resulted in a moderate to
severe brain injury resulting in deficits in his neuro psychiatric,
neuro behavioural and neuro psychological functions. He also suffered
injuries to his cervical and lumber spine. Kruger experienced
drastic
personality changes as he was aggressive and anti-social. The court
awarded R1 400 000,00 for general damages
which is
equivalent to R1 474 000,00 in 2023.
[16]
The Defendant refered the court to amongst others the case of:
April
obo a minor Verney Road accident fund [2021] LNQD 32 GJ
the
plaintive suffered serious injuries which included a head injury and
facial abrasions, loss of consciousness, neck pain, right
distal
radius and ulna fracture, an injury to the right ulna nerve, left
clavicle fracture, a pelvis fracture and multiple abrasions.
The
sequelae included a decrease in cognitive functioning and general
concentration ability and a decrease in reading ability.
The minor
suffers from chronic daily headache and loss of use of the dominant
right arm due to owner nerve injury with residual
pain. The minor
further suffers from post-traumatic stress disorder and have symptoms
of major depressive disorder. Find scarring
on the forehead, two
scars on the right wrist, two scars on the right arm and a scar on
the left for arm. The plaintive was awarded
an amount of R500,000 for
general damages in 2021.
Malangabe
V Road Accident Fund [2021] LNQD 24 (FB)
the
plaintive suffered a base of skull fracture and otorrhea, mild
traumatic brain injury, lacerations on the forehead and scalp
and
right acromioclavicular joint dislocation. The sequelae include
complaints of short-term memory, poor concentration and recurrent
headaches, painful right shoulder exacerbated by the lifting of heavy
weights and cold weather. The court awarded general damages
in the
amount of R400000,00.
Ndaba v Road Accident
Fund (EL 321/08) [2011] ZAECELLC 6
a
42-year-old
female, was travelling with her youngest child, a mere baby, when the
collision occurred. The plaintiff’s legs
were trapped inside
the vehicle and she had to pass her baby through the window to
onlookers while waiting to be freed from the
mangled vehicle. This
caused her much distress.
Upon
admission the following injuries were noted: A straddled pelvic
fracture, a right femural “midshaft” fracture and
a
bladder injury (rupture) as a result of blunt abdominal trauma. She
also sustained an injury to her right shoulder and a dashboard
left
knee injury. The latter injury she sustained being trapped between
the seats of the taxi she was traveling in. At the hospital,
a Denham
pin was inserted in the region of the right proximal tibia. A
balanced skeletal traction was performed and the wound on
her arm was
stitched. A catheter was inserted as a result of the ruptured
bladder. The fractured femur was also treated by means
of a delayed
internal fixation with a plate, screws and a bone-grafting procedure.
When the plaintiff presented with multiple complaints
of a painful
right shoulder pain in the pelvic area backache, a painful right hip
and right knee. She still suffers from all of
the aforementioned. The
plaintiff has difficulty in using her right arm. She is unable to
lift it above her shoulder. Pain in the
pelvic area is increased when
she climbs stairs or walks, and during sexual intercourse. The
plaintiff walks with a limp and her
knee is often painful and
swollen. She is unable to bend forward or stand for more than a few
minutes without pain. All her orthopaedic
complaints are aggravated
by inclement weather. She suffers permanently from discomfort and
intermittent pains.
The court awarded general damages
in the amount of R400 000.00 in 2011.
[17] In
the case of Dikeni v RAF 2002 (5) 171 GP Van Heerden J stated:
“
Although
these cases have been of assistance, it is trite law that each case
must be adjudicated, on its own merit. No one case
is factually the
same as the other. It only provides a guide in the assessment of
damages.”
[18]
This court had regard to
the cases submitted to it and have
come to the conclusion that few cases are directly comparable; no two
cases can be on all fours.
The cases submitted by the Plaintiff deals
with severe traumatic brain injury and in the case of mild to
moderate brain
injury there are
deficits in neuro
psychiatric, neuro behavioural and neuro psychological
functions, which the Plaintiff
in casu
does not suffer from.
[19]
Compensation must be fair and adequate. In
Tshongolo
v RAF
[9]
the
court awarded R500 000,00 to a teenager who suffered a very mild
brain injury not rendered unconscious after the accident,
as well as
abrasions to her face and fracture of her right clavicle.
Hospitalised for approximately three days returning to follow
up
examinations which included a procedure draining excess fluids from a
haematoma of her head. Experiencing occipital headaches
almost on a
daily basis as well as right shoulder pains induced by lifting heavy
objects. She suffered lower back pain induced
by inclement weather or
prolonged sitting and a soft tissue injury to her thoracolumbar
spine. Neurocognitive deficits including
in respect of concentration,
attention and working memory. The award currently translates to
R524 950, 00.
[20]
Having considered past awards and all the factors relevant to the
assessment of damages in this particular
case, I have formed the view
that an amount of
R525 000.00 would be fair
and
just compensation to the Plaintiff for general damages.
[21]
In the result, the following order is made:
Defendant
shall pay to the Plaintiff the sum of R525 000,00 as and for
general damages;
Defendant
shall pay interest on the sum aforesaid at the legal rate of
interest from a date fourteen (14) days after judgment
to date of
payment;
Defendant
shall pay the Plaintiff’s party/party costs which shall
include the trial dates of the 03
rd
and 04
th
of
October 2023.
M.T. JORDAAN, AJ
APPEARANCES:
Counsel
on behalf of the Applicant:
Adv
A.P. Berry
Instructed
by:
VZLR
INC.
c/o
DU PLOOY ATTORNEYS
BLOEMFONTEIN
Counsel
on behalf of the Respondent:
Ms
C. Bornman
Instructed
by:
State
Attorneys
BLOEMFONTEIN
[1]
Paginated
Bundle: Expert Notices Volume 2 page 170.
[2]
Paginated
Bundle: Expert Notices Volume 2 page 173.
[3]
Paginated
Bundle: Expert Notices Volume 2 page 174.
[4]
Paginated
Bundle: Expert Notices Volume 1 pages 4 to 6.
[5]
Paginated
Bundle: Expert Notices Volume 1 page 30.
[6]
Paginated
Bundle: Expert Notices Volume 1 page 34.
[7]
Paginated
Bundle: Expert Notices Volume 2 page 180.
[8]
De
Jongh v Du Pisani
2005 (5) SA 547
SCA.
[9]
Case
No. 19958/2014 (Judgment 2 November 2021) GSJ.