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[2022] ZAFSHC 61
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Ndlela v Road Accident Fund (2809/2014) [2022] ZAFSHC 61 (18 March 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2809/2014
In
the matter between:
THEMBIKHAYA
NDLELA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
09 MARCH 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
18 MARCH 2022
[
1]
In this matter the plaintiff claims general damages, loss of income,
future medical and hospital expenses
against the defendant for
resulting from the injures the plaintiff sustained in a motor vehicle
accident which took place on the
6 December 2010.
[2]
The plaintiff was a passenger in a vehicle with registration numbers
and letters
[â¦.]
driven by
Petrus Lefu Khaibe.
The
vehicle overturned as a result of a tyre burst.
[3]
It is common cause that as a result of the said accident, the
plaintiff sustained a traumatic brain injury,
fractures of the spine,
wrist and fifth finger of the right hand. He also lost three front
teeth.
[4]
The defendant has conceded the merits, 100% of the plaintiffâs
proven or agreed damages. The damages
for future medical expenses and
loss of income have also been settled between the parties.
[5]
The only issue that I
have to determine is the quantum pertaining to general damages.
It
was not in dispute that the plaintiff is entitled to general damages,
the parties are however in disagreement with regard to the
amount of
damages to be awarded.
[6]
By agreement between the parties, the plaintiff handed in the expert
reports by the medical examiner,
Dr Khan, orthopaedic surgeon Dr
Oelofse, neurosurgeon Dr van Aswegen, occupational therapist Ms
Stroebel, neuropsychologist Ms R
du Plessis, industrial psychologist
Dr Landman and actuaries Munro Actuaries. No evidence was led by
either party.
[7]
At this stage, it is expected that the plaintiff will benefit from
conservative treatments including physiotherapy,
bio kinetics, pain
and anti-inflammatory medication (NSAIDS) for the management of pain
and discomfort. Psychological interventions
are also recommended for
depression.
[8]
At the time of the accident the plaintiff was 47 years old. The
injuries have curtailed the enjoyment
of his amenities, recreational
activities, psycho-social aspects and some personal hygienic tasks,
in that:
8.1. He
can no longer perform the hand crafting activities he enjoyed as a
hobby prior to the accident. The limited
use of his right
forearm, neck and back has adversely affected his personal hygiene as
it is now difficult to use and extend the
arm to bathe.
8.2. The
plaintiff has also become an insomniac as he lies awake worrying
about the future.
8.3. The
accident has also left him with a slight scar on the forearm. He also
has a gap where his three teeth were knocked
out which has affected
his self-esteem. The experts reckon that the plaintiff will benefit
from consulting a dentist in this regard.
[9]
It was argued on behalf of the plaintiff that the amount that would
be just and equitable under these
circumstances would be an amount of
R950 000.00 (nine hundred and fifty thousand rand).
[10] On
the other side, it was the defendantâs submission that the amount
claimed by the plaintiff is excessive, having
regard to the fact that
the pain in the arm has since dissipated and his ailments can be
resolved or managed with conservative treatments.
As regards the
alleged lost front teeth, there are no medical records from the
dentist to confirm this injury. The amount that would
be fair is a
sum of not more R600 000.00.
[11]
I was referred to various authorities by the parties in support of
their respective arguments. I donât deem it
necessary to rehash the
submissions made in that regard. Comparable previous awards do serve
as a guide as two cases can never be
the same
each
case must be treated on its own unique facts.
[12] It
was said in
A A Mutual Insurance Association Ltd v Maqula
1978
(1) SA 805
(A)
that the determination for the award
for general damages has never been an easy task. There is neither a
mathematical nor a scientific
formula to compute the monetary value
on pain and suffering, and loss of amenities of life.
[13]
The court retains a wide discretion when it determines what to award
as general damages.
There
is no hard and fast rule of general application requiring a court to
consider past awards.
[14]
Having regard to the facts of the matter it can be established that
as a result of the injuries the plaintiff has
been left with chronic
headaches resulting from the head injury, there is a decreased
hearing in the left ear and cognitive changes
including impaired
memory and executive functions. His use of the right arm has been
limited in that he is unable to carry heavy
objects, perform hygienic
tasks or even partake in recreational activities requiring the use of
the arm. The pain in the arm has
subsided mainly because the
plaintiff is no longer using the arm or hand regularly. He is no
longer employed pursuant to the accident.
The loss of teeth has had
adverse effect on his self-esteem. He has also been rendered an
insomniac.
[15] It
is in the light of these circumstances that Iâm of the view that
the amount suggested by the defendant will
not
be adequate to compensate the plaintiff for the injuries he suffered
and that the amount that would fair and
equitable under these circumstances is the amount of R950 000.00
(nine hundred and fifty
thousand rand)
[16] In the
result I make the following order:
1.
The
draft order annexed hereto as annexure âXâ is made an order of
court.
N.S. DANISO, J
APPEARANCES:
Counsel on behalf of
the plaintiff: Adv.
PJJ Zietsman SC
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
Counsel on behalf of
the defendant: Ms. C. Bornman
Instructed
by:
Office of the State attorney
BLOEMFONTEIN