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Nojiya v Road Accident Fund (2991/2014) [2022] ZAFSHC 229 (15 March 2022)

82 Reportability
Personal Injury Law - Road Accident Fund
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Brief Summary

Damages — General damages — Assessment of damages for personal injuries — Plaintiff sustained severe injuries in a motor vehicle collision, resulting in ongoing cognitive, emotional, and physical impairments — Defendant conceded liability but disputed the quantum of general damages — Court awarded R750,000 for general damages, considering the nature and impact of the injuries on the plaintiff's quality of life and the expert evidence presented.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a delictual damages action brought in the High Court of South Africa, Free State Division, Bloemfontein, arising from a motor vehicle collision. The proceedings concerned a claim for compensation under the statutory scheme administered by the Road Accident Fund.


The plaintiff, Jacob Nceba Nojiya, sued the defendant, the Road Accident Fund (“RAF”), for damages arising from injuries sustained when he was a passenger in a motor vehicle involved in a collision on 6 December 2010 at Bloudrif Road, Virginia, Free State. The driver of the insured vehicle was identified as Petrus Lefu Khalbe.


The action was instituted on 2 July 2014. By the time of trial (heard on 4 March 2022), the RAF had conceded liability on the merits at 100%, and the parties had resolved most issues. The remaining dispute for determination was the appropriate quantum of general damages. The RAF also agreed to provide a statutory undertaking for future medical-related expenses.


The general subject-matter of the dispute was therefore confined to the assessment of non-patrimonial damages (general damages) for the consequences of the plaintiff’s injuries, including pain and suffering, disability, and loss of amenities of life.


2. Material Facts


It was not in dispute that the plaintiff was injured in a collision on 6 December 2010, and that the RAF was liable for 100% of the plaintiff’s proven or agreed damages. It was also not in dispute that the RAF would furnish an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 for qualifying future medical and related expenses, after such costs were incurred and proved.


The court recorded that the truth and correctness of a number of expert reports were accepted, and it was common cause that the plaintiff sustained the following injuries in the collision: abrasions to the face and head; bilateral subgaleal haematomas; a moderate traumatic brain injury with haemorrhagic contusions; and a spinal injury involving an undisplaced fracture of the anterior arch of C1 and bilateral crack fractures of the inferior aspects of the lateral masses of C1.


The sequelae of these injuries, as accepted by the court, included decreased concentration, impaired memory, irritability, headaches, sexual and bladder dysfunction, neck pain, and dizziness. The plaintiff was admitted to hospital for 11 days and experienced amnesia of the accident and the immediate period thereafter; the neurosurgical opinion referenced this as consistent with post-concussive syndrome.


By the first day of trial, the parties had narrowed the dispute substantially and agreed on the plaintiff’s claim for past and future loss of income in the amount of R844 590.00. The sole remaining issue was the appropriate amount for general damages, with the plaintiff contending for R950 000.00 and the RAF contending for R600 000.00.


A point of dispute was raised in argument by the RAF concerning whether aspects of sexual and bladder dysfunction should be attributed to the accident injuries, on the basis that such dysfunction had allegedly not been proved by a urologist’s report. The RAF also relied on aspects of the orthopaedic report indicating a united C1 fracture with no required treatment and conservative treatment for the C5/6 disc lesion, and emphasised the characterisation of the head injury as moderate for purposes of the general damages assessment.


3. Legal Issues


The central legal question was the quantification of general damages: what amount would constitute fair and adequate compensation for the plaintiff’s pain and suffering, disability, disfigurement (if any), and loss of amenities of life, having regard to the injuries sustained and their sequelae.


This dispute primarily concerned the application of legal standards to established facts, coupled with an evaluative value judgment. The court was required to exercise a wide discretion in determining an appropriate award, informed (but not dictated) by previous awards in comparable matters.


No live controversy remained regarding the merits (liability), nor regarding the agreed patrimonial loss for income, nor regarding the furnishing of the statutory undertaking. The determination was confined to non-patrimonial damages.


4. Court’s Reasoning


The court identified general damages as compensation for pain and suffering, disability, disfigurement, and loss of amenities of life. It approached the matter on the basis that the quantification of general damages is not capable of precise calculation and necessarily involves the court’s discretionary assessment of what is fair in all the circumstances.


In articulating the governing approach, the court referred to authority emphasising that the amount of compensation is determined by broad general considerations and reflects a judge’s view of fairness in the circumstances. The court also relied on authority confirming that trial courts enjoy a wide discretion in general damages matters, and that prior awards may provide guidance but do not establish a rigid rule requiring adherence to earlier figures.


Applying these principles, the court considered the nature and extent of the plaintiff’s injuries and their consequences as documented in the accepted medical reports. The court accepted that the plaintiff continued to experience cognitive and emotional sequelae associated with a moderate traumatic brain injury, as well as ongoing symptoms such as headaches, impaired memory and concentration, irritability, neck pain, dizziness, and dysfunction issues. The court also accepted that the plaintiff suffered from moderate depression and symptoms compatible with post-traumatic stress disorder, which had negatively affected his relationships with family and friends.


On the RAF’s submissions, the court noted the contention that certain dysfunction aspects were not supported by a urologist’s report, as well as the reliance on the orthopaedic view that the C1 fracture was united and required no further treatment and that conservative treatment was appropriate for the disc lesion. The court nonetheless evaluated the plaintiff’s overall condition as described in the reports and was satisfied that the injuries had caused substantial pain and suffering and had materially impacted the plaintiff’s quality of life and amenities.


Taking all relevant factors into account, and exercising its discretion, the court determined that a fair and just award for general damages was R750 000.00, which fell between the competing figures advanced by the parties.


5. Outcome and Relief


The court awarded judgment for the plaintiff in the total capital amount of R1 594 590.00, comprising R844 590.00 for future loss of income (as agreed) and R750 000.00 for general damages (as determined by the court).


The court ordered that payment be made within 180 days of the order, failing which the RAF would be liable for interest at the prescribed rate, compounded and calculated from 14 days after the date of the order.


The RAF was ordered to pay the plaintiff’s party-and-party costs on the High Court scale. The order also provided for payment (subject to the taxing master’s discretion) of the reasonable qualifying fees of the listed experts, and required the RAF to furnish the plaintiff with an undertaking in terms of section 17(4)(a) for 100% of the plaintiff’s qualifying future medical-related expenses arising from the collision.


Cases Cited


Sandler v Wholesale Coal Supplies Ltd 1941 AD 194 at 199.


Road Accident Fund v Marunga 2003 (5) SA 164 (SCA) at 165B.


Legislation Cited


Road Accident Fund Act 56 of 1996, section 17(4)(a).


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that, with liability conceded at 100% and patrimonial loss for income agreed, the only remaining issue was the quantification of general damages. Applying the principle that a trial court has a wide discretion to determine fair and adequate compensation for non-patrimonial loss, and considering the documented sequelae of the plaintiff’s moderate traumatic brain injury and cervical injuries, the court awarded R750 000.00 in general damages.


The court further held that the plaintiff was entitled to judgment in the total amount of R1 594 590.00, together with a section 17(4)(a) undertaking for future medical and related expenses, and an award of costs on the High Court scale including qualifying expert fees (subject to taxation).


LEGAL PRINCIPLES


The quantification of general damages for bodily injury involves compensation for pain and suffering, disability, disfigurement, and loss of amenities of life, and is not susceptible to precise calculation. The amount must be determined on broad general considerations and is inherently uncertain, depending on what the judicial officer considers fair in the circumstances.


A trial court has a wide discretion when determining general damages. There is no hard-and-fast rule obliging the court to follow past awards, although previous cases may provide guidance by indicating a general pattern of awards in broadly comparable matters.


In exercising this discretion, the court considers the plaintiff’s personal circumstances and the injuries’ nature, severity, permanence, and impact on lifestyle and quality of life, as established on the accepted evidence before it.

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Nojiya v Road Accident Fund (2991/2014) [2022] ZAFSHC 229 (15 March 2022)

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
Reportable:
YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
Case
no: 2991/2014
In
the matter between:
JACOB
NCEBA
NOJIYA
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
CORAM:
RAMOS AJ
HEARD
ON:
04 March 2022
DELIVERED
ON:
15
March 2022
INTRODUCTION
[1]
The Plaintiff instituted action against the defendant on the 02 July
2014. The cause
of action arises from injuries the plaintiff
sustained in a motor vehicle collision that occurred on 06 December
2010 at Bloudrif
Road, Virginia Free State. The plaintiff, whose date
of birth is 17 September 1980, was a passenger in the vehicle at the
time
of the collision with a motor vehicle, then driven by one Petrus
Lefu Khalbe (the insured driver).
[2]
The Defendant has conceded liability on the merits and is therefore
liable for 100%
of the Plaintiffs proven or agreed damages. The
Defendant concedes further that the Plaintiff qualifies for damages
as claimed.
However the amount of such damages is in dispute and
therefore an issue for determination.
BACKGROUND
FACTS
[3]
The Defendant has agreed to furnish the Plaintiff with an undertaking
in terms of
Section 17(4)
(a) of the
Road Accident Fund Act 56 of
1996
, for the cost of future accommodation of the Plaintiff in a
hospital or a nursing home or treatment or rendering of a service, or

supplying of goods or related expenses, in respect of injuries
sustained by the Plaintiff in the motor collision of 06 December

2010, after such costs have been incurred and on proof thereof.
[4]
The truth and correctness of a number of experts' reports have been
accepted. It was
not in dispute that as a result of the accident the
Plaintiff sustained the following personal injuries:
a)
Abrasions to the face and head
b)
Bilateral subgaleal haematomas
c)
Moderate traumatic brain injury,
haemorrhagic contusions
d)
Spinal injury : undisplaced fracture
anterior arch of C1 vertebra and bilateral crack fractures inferior
aspects of lateral masses
of C1
[5]
The sequelae of these injuries has left the plaintiff with decreased
concentration,
impaired memory, irritability, headaches, sexual and
bladder dysfunction, neck pain and dizziness.
[6]
On the first day of trial the parties attempted to settle all the
outstanding issues
in dispute. They were not able to reach full
agreement on all the issues and informed the court that the only
remaining issue left
for determination would be the award for general
damages. The Defendant agreed to pay R844 590.00 (eight hundred and
forty four
thousand five hundred and ninety rand) in respect of the
Plaintiffs claim for past and future loss of income resulting from a
motor
vehicle collision that occurred on 06 December 2010.
[7]
Plaintiffs’ counsel took the court through various expert
reports dealing with
the Plaintiffs injuries, the sequelae thereof
and its impact on the Plaintiffs life including the impact on the
employment and
the amenities of his life.
[8]
Emphasis was placed on the head and neck injuries and the impact it
has had on Plaintiff's
life. Counsel relied on the reports
commissioned by the Plaintiff, which reports stood as evidence during
the trial. The court
was referred to the report of Dr. A Van Aswegen
on page 146 of the indexed bundle where the following is recorded: “
the
long term cognitive and emotional consequences of mild to
moderate traumatic brain injury include somatic symptoms such as
chronic
headaches, cognitive symptoms such as attention deficits,
reduced working memory and impaired executive functions, and
psychiatric
symptoms such as depressed mood, insomnia, anxiety, poor
motivation, social withdrawal and interpersonal difficulties”
[9]
Dr. Van Aswegen’s finding were that the plaintiff suffered
moderate traumatic
brain injury which include the symptoms of chronic
headache, attention deficits, mood disorders and depression.
[10]
As a result of the injuries the Plaintiff sustained he was admitted
to hospital for a period
of 11 (eleven) days. He suffered from
amnesia of the accident and the immediate period thereafter. Dr. Van
Aswegan opines that
the sequelae of this type of injury is often
referred to as “post-concussive syndrome”
[11]
Dr. Rita Du Plessis conducted extensive interviews with the plaintiff
and is family which are
contained in her neuropsychological report.
Advocate Zietsman argues that her findings are significant and
provides the causal
link between the Plaintiffs injuries and his
current state of health and the difficulties he experiences related
thereto.
[12]
According to Dr. Du Plessis the Plaintiff displays symptoms of
moderate depression disorder.
He further states the Plaintiff’s
symptoms are compatible with a diagnosis of post-traumatic stress
disorder which has impacted
on his relationships particularly with
his wife. He is reported to be irritable and short tempered.
[13]
Advocate Zietman’s elaborated on the findings of Dr. LF
Oelofse, the orthopaedic surgeon.
He argues that Dr. Oelofse’s
report is important in proving that the injuries sustained is the
cause of the continued pain
and suffering the plaintiff is
experiencing. Prior to the accident the plaintiff medical history
reveals no complains of headaches
or neck pain. However after the
accident the plaintiff displays chronic pain and spasm, C5/6 disc
lesion with radicular symptoms
in the right hand and persistent
headaches.
[14]
Mrs Borman acting on behalf of the Defendant argues that the findings
made by Dr. Van Aswegan
on Page 1444 Paragraph 5.2.6 has not been
proved by a report from a urologist and as such argues that this
dysfunction should not
attributed to the injuries caused in the
accident.
[15]
She further highlights Dr. Oelofse’s findings on Page 91 at
paragraph 8.7, which indicates
a united fracture at C 1 and therefore
no treatment is required and that the conservative treated is
suggested for the disc lesions
observed at C5/6. She places emphasis
on the fact that the plaintiff sustained a moderate head in jury and
ask that the court takes
this into account when making the general
damages determination.
[16]
Both counsel referred the court to case law which may assist in
making the determination. The
Plaintiff argues that in light of the
past precedent in similar sequelae as the Plaintiff a fair and
reasonable award for general
damages would be R 950 000,00 The
defendant argues that in the present circumstances R 600 000,00
would be fair.
APPLICABLE
LEGAL PRINCIPLES
[17]
The issue of general damages is the remaining issue left for this
court to determine. General
damages account for pain and suffering,
disability, disfigurement and loss of amenities of life. In
determining general damages
the court is called upon to exercise it
discretion to award what it considers to be fair and adequate
compensation having regards
to a broad spectrum of facts and
circumstances connected to the Plaintiff and the injuries sustained
by him including their nature,
permanence. Severity and the impact on
his life style.
[18]
In
Sandler
v Wholesale Coal Supplies Ltd
[1]
,
the court held:
"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 upon the judge's view of what is
fair in all the circumstances
of
the
case"
[19]
In the case of
RAF
v Marunga
,
[2]
it
was held that: “in cases in which the question of general
damages arose, a trial Court had a wide discretion to award what
it
considered to be fair and adequate compensation to the injured party.
There was no hard and fast rule of general application
requiring a
trial Court to consider past awards, although the Court might derive
some assistance from the general pattern of previous
awards.”
[20]
The court thus has a wide discretion to award what is fair and
adequate compensation to the injured
party. Past awards serve no more
than to give some indication or guidance as to what sort of awards
are appropriate on the facts
of a particular case.
[21]
The nature and extent of the Plaintiff's pain and suffering and loss
of amenities of life are
well documented in the medical reports. The
parties have made submissions and I have made reference to the
pertinent sections above.
As a result of the injured the plaintiff is
left with decreased concentration, impaired memory, irritability,
headaches, sexual
and bladder dysfunction, neck pain and dizziness.
In addition to these sequelae, he suffers from moderate depression
and post-traumatic
stress disorder which has impacted his
relationships with family and friends. I am also satisfied that the
Plaintiff injuries has
caused substantial pain and suffering which
has impacted his quality of life.
[22]
Taking all these factors into account, it is my considered view that
a fair and just compensation
for general damages for the Plaintiff is
the amount of R750 000.00.
ORDER:
1.
Payment by the Defendant to the Plaintiff
in the sum of
R 1 594 590.00
( one million five hundred and ninety four thousand, five hundred and
ninety rand) which amount is calculated as follows:
1.1
Future Loss of Income
:
R 844 590.00 (Eight hundred and forty
four thousand five hundred and ninety rand)
1.2
General Damages: R 750 000.00 ( seven
hundred and fifty thousand rand)
2.
Payment of the total amount under paragraph
1, is ordered to be made within 180 days from the date on which this
order is made,
failure of which, the Defendant will be liable for
payment of interest at the prescribed rate compounded and calculated
as from
14 days from the date of this order.
3.
The Defendant is ordered to pay the party
and party costs of the Plaintiff as determined on the High Court
Scale.
4.
The Defendant is ordered to pay, subject to
the discretion of the taxing master, the reasonable and qualifying
fees of the following
experts:
4.1.1 Dr Kahn (general
practitioner);
4.1.2 Dr Schutte (general
practitioner);
4.1.3 Dr LF Oelofse
(orthopedic surgeon);
4.1.4 Dr Smuts
(neurologist);
4.1.5 Dr A van Aswegen
(neurosurgeon);
4.1.6 Hanri Meyer of Rita
van Biljon Occupational Therapists;
4.1.7 Louise Liebenberg
of Rita van Biljon Occupational Therapists;
4.1.8 Rita du Plessis
(clinical psychologist);
4.1.9 Dr EJ Jacobs
(industrial psychologist);
4.1.10  Munro
Forensic Actuaries.
5.
Payment of the capital amount shall be made without set-off or
deduction, within
180 (hundred and eighty) calendar days from date of
the granting of this order, directly into the trust account of the
plaintiff's
attorneys of record by means of electronic transfer, the
details of which are the following:
Honey Attorneys
-       Trust Account
Bank
-
Nedbank, Maitland Street, Bfn
Branch Code
-        11023400
Account No.
-        [....]
Reference
-        HL
Buchner/J03194
6.
The defendant shall furnish the plaintiff with an Undertaking in
terms of
Section 17(4)(a)
of the
Road Accident Fund Act, Act
No 56 of
1996 for 100% of the plaintiff’s future accommodation in a
hospital or nursing home, or treatment or rendering of
a service, or
supplying of goods or related expenses in respect of injuries
sustained by the plaintiff in the motor vehicle collision
which
occurred on 06 December 2010.
RAMOS,
AJ
ON
BEHALF OF PLAINTIFF:
Counsel:
ADVOCATE ZIETSMAN
Instructed
by:  Honey Attorneys
Honey
Chambes
Northridge
Mall
Kenneth
Kaunda Road
Bloemfontein
ON
BEHALF OF DEFENDANT:
MRS
C BORNMAN
State
Attorneys, Bloemfontein
11
th
Floor, Fedsure Building
49
Charlotte Mxexe Street
Bloemfontein
[1]
1941
AD194 at 199
[2]
2003
(5) SA 164
at 165 B

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