Dhlamini v Road Accident Fund (3564/2018) [2022] ZAFSHC 72 (23 March 2022)

82 Reportability

Personal Injury Law - Road Accident Fund

Brief Summary

Damages — General damages — Assessment of damages for personal injuries — Plaintiff suffered severe injuries in a motor vehicle accident, resulting in permanent disabilities and loss of earnings — Parties settled on merits and loss of earnings, with dispute remaining on general damages — Court assessed injuries and determined appropriate award for general damages to be R1,000,000, considering the severity and permanence of injuries — Defendant ordered to pay total damages of R2,029,840.85, inclusive of general damages and loss of earnings.

Comprehensive Summary

Summary of Judgment

Introduction

This was a Road Accident Fund action in the High Court of South Africa, Free State Division, Bloemfontein, in which the plaintiff sought compensation for damages arising from a motor vehicle collision. The proceedings ultimately concerned the quantification of general damages only, after the parties had settled the remaining aspects of the claim.

The parties were MJ Dhlamini (plaintiff) and the Road Accident Fund (defendant). The matter was heard on 1 March 2022 before Mathebula J, and judgment was delivered electronically on 23 March 2022.

As to procedural history, the court recorded that the parties had already settled the merits, loss of earnings, and future medical expenses. The sole outstanding issue for determination at trial was the appropriate award for general damages (non-patrimonial loss), with the plaintiff having rejected the defendant’s offer and the parties presenting competing submissions supported by comparators.

The general subject-matter of the dispute was the assessment of appropriate compensation for pain and suffering, loss of amenities of life, and the general sequelae of severe bodily injuries sustained in the collision, including neurological and orthopaedic consequences.

Material Facts

The collision occurred on 7 January 2018, when the plaintiff was a passenger in a motor vehicle involved in an accident. The court recorded that the insured driver was apparently travelling at a high speed, lost control of the vehicle, and the collision followed. The plaintiff sustained serious injuries and was transported to Boitumelo Hospital, Kroonstad for initial treatment, and after two days he was transferred to Pelonomi Hospital, Bloemfontein, where he was admitted for approximately six weeks.

The parties agreed that no witnesses would be called and that “all evidence” was contained in the expert reports. The plaintiff delivered reports by six experts and the defendant delivered three reports. The court treated the injuries as well documented in those reports. The orthopaedic surgeon recorded thoracolumbar fracture, pelvic injury, and head injury. The urologist noted mild symptoms of lower tract obstruction. The neurosurgeon recorded mild concussion and a spinal cord injury at T12–L1, which resulted in monoplegia of the right leg.

The court recorded aspects of the medical management, including that X-rays of the thoracic and lumbar spine were processed, a suprapubic catheter was inserted, analgesics were prescribed, and the plaintiff was provided with a wheelchair and crutches.

The sequelae described in the reports were summarised by the court as including frequent headaches, stabbing lower back pain, loss of function of the right leg due to paralysis, inability to walk without two crutches, an unsteady gait with incoordination and involuntary movement, difficulty concentrating, frequent nightmares about the accident, reduced muscle bulk in the right leg, and urinary incontinence.

Although the plaintiff did not testify, his physical condition was demonstrated in court when counsel asked him to stand. The court observed that he could not stand without assistance from his wife, appeared shaky, could not take strides, and displayed severe incoordination and involuntary movements, particularly when not using crutches. The court formed the impression from this demonstration that the plaintiff could “hardly stand” and would not be functional in a work environment.

The only factual dispute relevant to the outcome was not about the occurrence of the collision or the existence of injury, but about the appropriate quantum of general damages. The plaintiff contended for R1 200 000, while the defendant contended for R450 000.

Legal Issues

The central legal question was the appropriate amount of general damages to award in light of the plaintiff’s injuries and their consequences, given that other heads of damages and liability issues had been resolved by agreement.

The dispute was primarily one of the application of law to fact and involved a significant value judgment. The court was required to exercise a discretionary assessment of quantum, informed by established principles and comparative awards, while recognising that no strict formula exists.

Court’s Reasoning

The court approached the assessment of general damages as an inherently discretionary exercise. It emphasised that the goal is to arrive at an award that compensates the injured party in a fair and adequate manner. In doing so, the court stated that it must have regard to the injuries sustained, including their nature, severity, permanence, and general impact on the plaintiff’s life.

The court accepted that there are no hard and fast rules and no particular formula for quantifying general damages. It noted the common recognition that previously decided matters used for comparison will not necessarily be “on all fours” with the case at hand. On the facts of this case, the court recorded that both counsel could not find a decided case matching the plaintiff’s particular constellation of injuries, and the court itself could not make “much progress” in locating close precedents. The authorities presented were therefore treated as guides rather than determinative comparators.

Applying these principles to the facts, the court focused on the severity of the plaintiff’s functional impairment. It placed weight on the fact that the injuries had rendered the plaintiff unemployable and that this was not merely an abstract conclusion from reports but was supported by the plaintiff’s observed inability to perform even elementary physical functions such as standing unaided and taking a few strides. The court highlighted the unsteady gait, the pronounced incoordination of the right leg, and the involuntary movements that required physical assistance to prevent a fall.

The court further reasoned that the injuries were permanent, and that the plaintiff continued to experience sharp and debilitating spinal pain. It accepted that the evidence showed that the plaintiff could not function independently. With these factors in mind, and in the absence of close precedent, the court concluded that a fair and adequate award for general damages was R1 000 000.

Outcome and Relief

The court ordered that the defendant was liable for 100% of the plaintiff’s proven or agreed damages. It ordered the defendant to pay a total capital amount of R2 029 840.85, comprising R1 029 840.85 for loss of earnings and R1 000 000.00 for general damages, to be paid into the plaintiff attorneys’ trust account specified in the order.

The court further ordered that if payment of the capital amount was not made within 180 days from the date of hand-down, the defendant would be liable for interest at 7% per annum, compounded and calculated fourteen days from the date of the order.

In addition, the court ordered the defendant to furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 in respect of future hospital or nursing home accommodation, treatment, services, and goods of a medical and non-medical nature arising from the collision, after costs had been incurred and upon proof thereof. If the defendant failed to furnish the undertaking within 30 days, it would be liable for additional taxable party-and-party costs incurred to obtain it.

The defendant was ordered to pay the plaintiff’s taxed or agreed party-and-party costs on a High Court scale up to and including the date of the order, including the reasonable qualifying fees of the listed experts. The order also regulated taxation procedure in the event of disagreement on costs.

Cases Cited

Monamodi v Road Accident Fund (23.02.2007) (W) (unreported).

Cordeira v Road Accident Fund 2011 (6A4) QOD 45 (GNP).

Van Zyl NO v Road Accident Fund 2012 (6A4) QOD 138 (WCC).

Ramolobeng v Lowveld Bus Services (Pty) Ltd and Another 2015 ZAGPPHC 31 (3 February 2015).

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 merits and other heads of damages settled, the remaining question was the appropriate award for general damages, which required a discretionary assessment aimed at fair and adequate compensation. Having regard to the nature, severity, permanence, and impact of the injuries—particularly the plaintiff’s demonstrated inability to stand or walk without assistance and the finding that he was rendered unemployable—the court awarded R1 000 000 as general damages. It granted consequential monetary, interest, undertaking, and costs orders in favour of the plaintiff.

LEGAL PRINCIPLES

General damages in Road Accident Fund matters are assessed through a discretionary evaluation by the trial court, directed at achieving fair and adequate compensation for non-patrimonial loss.

In determining quantum, the court must consider the nature, severity, permanence, and overall impact of the injuries on the claimant’s functioning and quality of life.

There is no fixed formula for quantifying general damages. Previously decided awards serve as guidelines only and may not be directly comparable; the absence of closely matching precedent does not prevent the court from arriving at an appropriate figure by weighing the relevant factors on the evidence before it.