About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 128
|
|
Seleso v Road Accident Fund (4361/2018) [2022] ZAFSHC 128 (25 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 4361/2018
In
the matter between:
TEBOHO
BEN SELESO
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
22 FEBRUARY 2022
DELIVERED
ON:
25 FEBRUARY 2022
This
judgement was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date and time for hand-down is deemed to be 11:00 on 25 February
2022.
[1]
The plaintiff instituted an action against the defendant as a result
of bodily injuries
sustained in a motor vehicle collision on 30
September 2017. On the day of this trial the merits were settled on
the basis that
the defendant is to pay 100% of the plaintiff’s
proven or agreed damages.
[2]
The defendant further agreed to pay an amount of R 414 588.65
(Four Hundred and
fourteen Thousand Five Hundred and Eighty-Eight
Rands and Sixty-five cents) to the plaintiff for past and future loss
of earnings
and undertook to provide the plaintiff with an
undertaking in terms of section 17(4)(a) of the Road Accident Fund
Act in respect
of future medical expenses.
[3]
In these proceedings this court is only called upon to adjudicate the
claim in respect
of general damages.
[4]
The following background information is relevant: In order to prove
its damages, the
plaintiff relied on the expert reports of Drs D
Hoffman, a plastic, reconstructive and cosmetic surgeon; JP Marin, an
orthopaedic
surgeon. Both doctors also completed the RAF 4 Forms in
respect of the injuries sustained by the plaintiff.
[5]
It is common cause that according to the narrative test the plaintiff
sustained serious
injuries. He was diagnosed with cervical spine
fracture as well as a tibia plateau fracture. On 13 October 2017, he
underwent cervical
1 and cervical posterior fusion and bone graft. On
17 October 2017 and on 20 October 2017 he underwent C1-C2 posterior
fusion and
fusion of the C1/2 respectively. On 8 November 2017 he
again underwent an open and internal fixation of the left tibia
plateau.
[6]
The radiology report from Burger Radiologists dated 6 September 2019
incorporated
in the report of Dr Marin reveal the following:
“
Cervical
spine
·
Prominent mid and lower cervical spondylosis pathology with disc
space and anterior degenerative spurs as well as neuro central
osteophytosis.
·
Evidence of previous CI-C2 posterior element injury with fixation
of C1 and C2 posterior elements with wiring.
·
Distortion of C1-C2 articulation with impression of probable
previous base of dens fracture also present with subsequent
modulation
deformity.
·
At the levels of spondylosis there is a neuro-central
osteophytosis with biforaminal narrowing at C4-C5, C5-C6 and C6-C7
levels.c
Lumber
spine
·
Some early anterior degenerative spurring at the upper lumber
spine.
·
No high grade wedge compression injury or bone destruction or sign
of spondylosis or spondylolisthesis
.”
[7]
According to the repots accepted in evidence, following the accident
the plaintiff
experiences neck pains and has developed headaches on
the cervical spine. He experiences stiffness and cramps on the neck.
Lifting
heavy objects is a challenge as it is now difficult with the
pain. On the lumber spine area, it is reported that he experiences
pain and further that the pain becomes exacerbated by cold weather.
[8]
In the particulars of claim the plaintiff sues for a global amount of
R1 050 000.00.
The plaintiff alleges in the particulars of
claim that:
“
In
terms of section 17(1)(a) of the Act, the Defendant is responsible to
deal with all claims resulting from injuries sustained
as a result of
the negligent and unlawful driving of a motor vehicle
.”
The
particulars of claim in this matter are badly drawn and the necessary
allegations have not been pleaded in terms of the rules.
[9]
Uniform Rule 18(10) provides as follows:
‘
A
plaintiff suing for damages shall set them out in such manner as will
enable the defendant reasonably to assess the quantum thereof:
Provided that a plaintiff suing for damages for personal injury shall
specify his date of birth, the nature and extent of the injuries,
and
the nature, effects and duration of the disability alleged to give
rise to such damages, and shall as far as practicable state
separately what amount, if any, is claimed for-
(a)
medical costs and hospital and other similar expenses and how these
costs and expenses are made
up;
(b)
pain and suffering, stating whether temporary or permanent and which
injuries caused
it;
(c)
disability in respect of- (i) the earning of income (stating the
earnings lost to date and how the amount is made up and the
estimated
future loss and the nature of the work the plaintiff will in future
be able to do); (ii) the enjoyment of amenities of
life (giving
particulars); and stating whether the disability concerned is
temporary or permanent; and
(d)
disfigurement, with a full description thereof and stating whether it
is temporary or permanent.’
[10]
What is apparent from the settled issues considered with the disputed
issue is that the plaintiff
claims damages under different headings,
to wit
, future medical expenses, past and future loss of
earnings and general damages hence.
[11]
The summons does not disclose the amount the
general damages are being claimed. The particulars of claim
fall way
below what is envisaged by Rule 18(10). The plaintiff failed to plead
the nature and the extent of the injuries, the pain
and suffering,
loss of amenities, the disfigurement and so on. The particulars of
claim were not drafted in such a way as would
enable the defendant to
assess the quantum claimed. It is difficult to understand why the
defendant did not except to these particulars
of claim.
[12]
In an attempt to bring sanity to these particulars of claim, it is
submitted in Heads of Argument
of the plaintiff that he claims
R500 549. 00 for loss of earnings and R800 000 for general
damages. This would bring
the amount claimed to be R1 300 549.00.
This amount is clearly far above what is being claimed in the
summons. The plaintiff
did not seek to amend the particulars of
claim. This court cannot grant relief beyond that which has been
claimed and proven.
[13]
It is settled that when considering general damages, a court has a
wide discretion to award what
it considers to be fair and adequate
compensation for the injured party.
[1]
The court in
Marunga
[2]
put it as follows:
“
This
Court has repeatedly stated that in cases in which the question
permanent disability and loss of amenities of life arises a
trial
Court in considering all the facts and circumstances of a case has a
wide discretion to award what it considers to be fair
and adequate
compensation to the injured party.” of general damages
comprising pain and suffering, disfigurement,
[14]
Both Counsels informed me that they had been unable to find any
comparable awards comprising
the injury of the cervical spine, the
lumber spine and the knee injuries. It has to be borne in mind that
the comparable awards
only serve as a guide. The remarks in
Protea
Assurance Co Ltd v Lamb
[3]
are instructive in which the following was said:
“
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 factors which are
considered to be relevant in the assessment of 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.”
[15]
It is clear that the plaintiff still experiences headaches in his
everyday life. He has scarring
which is permanent. Before the
collision he had no visible scars. Now that he has permanent scars
this would invariable affect
his self-esteem. The tibial plateau
fracture was operated resulting in a 14cm long scar. The sequelae of
the injuries have been
set out in the radiology report as indicated
above. The plaintiff is a shoemaker by trade and has to sit or stand
for long hours
in the performance of his duties. He has to obviously
also bend for long hours when repairing shoes. He has now developed
some
form of degeneration on both the cervical and lumber spine
areas.
[16]
Having considered all the factors in this case, the past awards in
broad and general terms, I
am of the considered view that an amount
R580 000.00 will be appropriate as compensation for general
damages herein. I make
this order:
ORDER
1.
The defendant to pay the plaintiff the sum of R 994 588.65
in
respect of:
a)
Loss of earnings R414 588.65;
b)
General damages R580 000.00;
2.
The defendant to furnish the plaintiff with an undertaking in
terms
of s17(4)(a) of Act 56 of 1996 for future accommodation of the
plaintiff in a hospital or nursing home or treatment of or
the
rendering of a service or supply of goods of medical or non-medical
nature to the plaintiff and after the costs have been incurred
and
upon submission thereof) arising out of the injuries sustained in the
collision which occurred on 18 September 2017.
3.
The defendant to pay the plaintiff’s agreed or taxed costs
which shall include, but not limited to the following:
3.1
The fees of Counsel
3.2
The reasonable qualifying costs of the following experts:
3.2.1
Dr Marin, an orthopaedic surgeon;
3.2.2
Dr Hoffman, Plastic and Reconstructive Cosmetic surgeon;
3.2.3
Ms Lindelwa Grootboom, Psychologist;
3.2.4
Ms Rita van Biljon, Occupational Therapist;
3.2.5
Dr AC Strydom, Industrial Psychologist;
3.2.6
Mr Sauer, actuary.
P.E.
MOLITSOANE, J
On
Behalf of the Plaintiff:
Adv Cross
Instructed
by:
VZLR
Bloemfontein
On
Behalf of the Defendant:
Ms. C Bornman
Instructed
by:
The State Attorney
Bloemfontein
[1]
RAF
v Marunga 2003(5) SA 164(SCA) at 169 E-F.
[2]
Para
23.
[3]
1971(1)
SA 530 (A) at 536A.