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[2022] ZAFSHC 154
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M.J.M obo L.J.M v Road Accident Fund (4873/2019) [2022] ZAFSHC 154 (15 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4873/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
M
J M obo L J M
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
[Claim
Number: 560/12349145/1091/1 and Link Number: 4338222]
CORAM:
SNELLENBURG,
AJ
HEARD
ON:
18 MAY
2022
DELIVERED
ON:
15 JUNE 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The date and time for hand-down is deemed to be
15 June 2022 at
12h30
[1]
On 22 August 2015 at or near Du Plessis Street, Odendaalsrus, Free
State Province,
the plaintiff’s minor daughter, who will be
referred to in this judgment as L, was injured in a vehicle
pedestrian collision.
The minor was 4 years and 11 months of age at
the time of this fateful incident. The plaintiff acts in her capacity
as natural
mother and guardian of L. To protect the identity of the
minor, the plaintiff is referred to in the heading to this judgment
as
M J M.
[2]
The defendant conceded the merits of the plaintiff’s claim and
is liable to
compensate the plaintiff for 100% of any agreed or
proven damages arising from the collision. The defendant also
tendered an undertaking
in terms of s 17(4)(
a
) of the
Road
Accident Fund Act 56 of 1996
[the Act] in respect of L’s past
medical and hospital expenses.
[3]
The remaining disputes between the plaintiff and defendant are
limited to the contingency
to be applied to the premorbid (uninjured)
future loss of income and the amount to be awarded for general
damages. The values calculated
by the actuary for both uninjured and
injured earnings are not in dispute and the parties are
ad idem
that a 30% contingency deduction on the postmorbid earnings is
appropriate in the circumstances.
[4]
The defendant accepted the reports of the following expert witnesses
which were duly
delivered by the plaintiff in terms of the provisions
of Uniform
rule 36(9)(b):
1.5
9cm; margin-bottom: 1cm; line-height: 150%; page-break-before: auto">
4.1 Dr.
A Van Aswegen – Neurosurgeon;
4.2 Mr.
L Roper – Clinical and Neuropsychologist;
4.3 Dr.
PB White – Plastic Surgeon;
4.4
Mrs. L Liebenberg – Occupational Therapist;
4.5
Mrs. L Swart – Educational Psychologist;
4.6 Dr.
EJ Jacobs – Industrial Psychologist;
4.7
Messrs Munro Forensic Actuaries (Mr. C du Plessis, Mr. W Boshoff and
Ms. J Valentini).
[5]
By agreement between the parties, with the Court’s leave, the
aforesaid experts
confirmed the content of their reports [expert
conclusions and reasons therefor] and their curriculum vitae on oath
by means of
affidavit, in terms of the provisions of Uniform
rule
38(2).
Both parties rely on the plaintiff’s expert reports.
[6]
The Court is still called upon to evaluate the expert evidence to
satisfy itself that
the evidence satisfies the required criteria
regardless of the agreement between the parties. I have considered
the expert reports
containing their conclusions and the reasons
therefor and have no hesitation in accepting their evidence.
[7]
Relevant to the issues that serve for determination are the following
findings and
conclusions by the experts:
7.1 The
neurosurgeon, Dr. Anton Van Aswegen, concludes that L suffered at
least a mild to moderate traumatic brain
injury in the accident.
There exists at least between 2-10 percent chance that L may develop
early onset dementia as result of
the single episode of mild
traumatic brain injury. The neurocognitive symptoms that are present
can be ascribed to the aforesaid
head injury and extended hospital
stay (L remained in hospital for a period of a month). L will on
probabilities never reach her
full potential and if she does not pass
her exams, she is at high risk of developing “so-called
‘burn-out’”.
7.2
Plastic and Reconstructive Surgeon, Dr. P Bruce White confirms that L
sustained a de-gloving injury of the
right fronto-temporal region of
the scalp. The photographs presented as part of the report depict a
very prominent unsightly scar
and hair loss of hair bearing skin. L
will need major surgical intervention to replace the scarring with
normal hair-bearing skin.
Even after surgery L will retain permanent
serious disfigurement.
7.3 The
neuropsychologist, Mr. Leon Roper, undertook a neuropsychological
assessment to establish the nature and
severity of any cognitive
impairment and how this may have impacted L’s ability to
function interpersonally and scholastically.
The following
neuropsychological deficits were identified:
7.3.1 Attention and
concentration difficulties. L is vulnerable to stimulus overload and
exhibits fluctuating attention abilities;
7.3.2 Poor rote verbal
learning abilities and narrative memory difficulties;
7.3.3 Slowed mental
response speed abilities;
7.3.4 Poor verbal fluency
abilities.
7.4
According to Mr. Roper the following factors are considered potential
contributing factors towards the cognitive
difficulties which were
indicated during the assessment:
7.4.1 Pertaining to L’s
premorbid cognitive functioning there is no substantial indication
that L suffered from significant
premorbid deficits, however the
presence of a subtle vulnerability in this regard cannot be excluded
given the reported educational
history of her parents and brother.
L’s parents reportedly obtained Grade 8 and Grade 10,
respectively, while her brother
failed Grade 01 and Grade 04.
7.4.2 Increased
irritability and fatigue can be partly related to the head injury but
could also stem from decreased frustration
tolerance or emotional
regulation difficulties that often arise from such an injury.
7.4.3 Additional factors
that may also play a role are posttraumatic stress symptoms which
present as result of her involvement
in the accident, headaches, and
the fact that she has been teased by her friends over the scarring
from the injury. The scarring
and headaches are constant reminders of
the accident. The difficulties may impact negatively on her
interactions with others and
peers and may have long term
consequences with regards to social and interpersonal development. L
is anxious and hyper-vigilant
when walking close to roads and even
when travelling by vehicle. This is partly the result of an
unresolved trauma response.
7.4.4 L suffers from
depressed mood and mood disturbances. L’s involvement in the
accident has brought about symptoms of Posttraumatic
Stress Disorder
and mild symptoms of Major Depressive Disorder rendering L
psychologically vulnerable. The teasing she endures
as result of the
scarring resulted in decrease of self-esteem that contribute further
to the overall reduction in L’s psychological
resilience.
7.4.5 The sequelae from
the head injury contribute to a diminished quality and enjoyment of
life. This includes, amongst others,
the loss of her sense of
security, appearance and sense of physical integrity (as result of
the scarring), loss of self-esteem,
as well as peer relationships
(the teasing L endures as result of the scarring has a negative
impact on her relationship with her
friends and makes her sad) and
the depressed mood and self-esteem difficulties could contribute to
social withdrawal in the long
term.
7.4.6 Moderate head
injuries have the potential to bring about psychological symptoms
such as depression, irritability, and increased
arousal. The symptoms
could be part of organic origin (psychological issues caused by
issues/changes in the brain) which would
be expected to impact
negatively on her prognosis.
7.4.7 Decreased peer
relationships and difficulty regulating her emotions have the
potential to disrupt L’s normal social
and interpersonal
development which can lead to long term effects in this regard.
Decreased interpersonal functioning and social
dysfunction is likely
to render L more psychologically vulnerable.
7.4.8 Regular headaches,
irritability and memory difficulties impact negatively on several
spheres of L’s functioning which
negatively impact on her
quality and enjoyment of life. Her depressed mood, anxiety and
feelings of rejection contribute to a diminished
quality and
enjoyment of life.
7.4.9 The cognitive
difficulties are expected to render L more prone to decreased
scholastic performance and even grade failures
as she progresses to
higher grades with more complex material. Her premorbid scholastic
potential may have been hampered by the
head injury to some extent.
7.4.10
As result of the abovementioned considerations it is probable
that L
will have decreased motivation.
7.4.11
L’s psychological prognosis is expected to be somewhat guarded
and dependent to a large extent on the resolution or management of
her headaches and scarring as well as her future scholastic
performance and her ability to maintain adequate interpersonal
relationships.
7.5 The
Occupational Therapist, Mrs. Liebenberg states with regards to the
impact of the accident and injuries
on L’s education, amongst
other matters:
7.5.1 Regarding birth and
early childhood developments, the plaintiff admits using alcohol
during the pregnancy. There were no birth
or antenatal complications
and L reached her developmental milestones within the expected norm.
7.5.2 If L should not
complete Grade 12 or complete her schooling at a vocational school,
she will likely not be able to obtain
access to further education.
Under these circumstances she is not likely to obtain employment
involving demands of higher executive.
7.5.3 L will not be an
equal competitor within the open labour market. She will have
difficulty to obtain suitable employment and
will be more vulnerable
to successfully retain employment. The reasoning regarding this is as
follows: considering cognitive difficulties,
L would likely only be
employable at a lower level of the open labour market where the job
will need to be structured, well supervised
and where a high level of
productivity is not expected.
7.5.4 The continuous
headaches will negatively affect L’s participation in work
tasks due to negatively affected attention
and concentration. This
could negatively influence her work speed and quality of work. For as
long as psychological difficulties
persist this could have a negative
effect on her interpersonal relationships at work, her work speed and
her motivation and drive
to work.
7.5.5 Cognitive and
psychological difficulties, as well as headaches and the need for
accommodation regarding this, will make her
a less favourable
employee, compared to peers with no such difficulties.
7.5.6 Should L develop
epilepsy in the future, she will further be restricted in terms of
the type of work that she can perform
e.g., she will have to avoid
working on heights, near open water, with high voltage or open
circuit electricity, with dangerous
tools, on or near moving vehicles
and with unguarded fires, ovens, and hot plates. In such instance the
type of work L could perform
would be even more limited and her work
capacity could decrease if she does develop epilepsy.
7.5.7 L's ability to
obtain suitable employment in the open labour market and to excel in
a workplace as per her pre-accident potential,
and as result also her
earning capacity, have been compromised.
7.5.8 Mrs. Liebenberg
defers to the opinion of an Industrial Psychologist regarding L's
pre- and post-accident earning potential
and employability
considering current limitations.
7.6 The
Educational Psychologist, Mrs. Linda Swart, prepared a
Psycho-Educational medico-legal report. The most
salient aspects of
her report are as follows:
7.6.1 L’s familial
background, as at the date of the report, is as follows:
7.6.1.1
L’s father, aged 45, completed Grade 8 and was last employed as
farm worker during 2018.
7.6.1.2
L’s mother, aged 35, dropped out of school during Grade 10 and
has never been employed.
7. 6.1.3
L has two siblings, a brother in Grade 6 who is reported to be a slow
learner who has repeated both Grades
1 and 4, and a sister in Grade 1
who is also reportedly not doing well.
7.6.1.4
L’s paternal grandfather has passed away. His highest
educational level is not known
and in life he was employed as
mine/farm worker.
7.6.1.5
L’s paternal grandmother has passed away. Her highest
educational level is not known
and in life she was unemployed.
7.6.1.6
The paternal grandmother and grandfather had three children, one
daughter and two sons. As
far as educational level achieved is
concerned, the daughter (L’s aunt) obtained Grade 11 and the
sons respectively Grades
8 and 7. The son with Grade 7 (L’s
uncle) has part time employment, whilst his siblings were unemployed
at date of the report.
7.6.1.7
L’s maternal grandfather has passed away. His highest
educational level is not known
and in life he was employed as farm
worker.
7.6.1.8
L’s maternal grandmother has passed away. Her highest
educational level is not known
and in life she was employed as
domestic worker.
7.6.1.9
L’s maternal grandmother and grandfather had four daughters.
Three of them (L’s
aunts) obtained Grade 8 as highest
educational level and all three of them are unemployed, whilst L’s
mother obtained Grade
10 and has never been employed.
7.6.2
The expert draws a distinction between unemployment and
the fact that
a person has never been employed. The particulars of the unemployed
persons’ prior employment have not been
recorded.
7.6.3
L was injured in her Grade R year which presents challenges
in
determining her probable premorbid scholastic performance. According
to the plaintiff, p
rior to the accident the
feedback from the school was that she was making pleasing progress.
The accident occurred on 22 August
2015 and L did not return to
school that year. L was notwithstanding considered to be ready to
proceed to Grade 1 due to her previous
performance, prior to the
accident.
Postmorbid L repeated Grade 1, passed Grades 2 and 3
and was disruptive in class during Grade 4.
7.6.4
L’s pre-accident intellectual level was determined,
by making
use of the best-test method according to Lezak, as being at least in
the average range. After evaluating the collateral
information
pertaining to L’s birth, early childhood development and the
opinions of the other experts, Mrs. Swart concludes
that L would have
obtained Grade 12 (matriculate (NQF4)) and depending on her final
matriculation results could have proceeded
to tertiary education at a
TVET - College to study towards a higher certificate (NQF5), had the
means and opportunity been available
to her.
7.7 The
Industrial Psychologist, Dr. Everd
Jacobs, was
instructed to consider L’s most probable premorbid and
post-morbid career paths. He had the benefit of the expert
reports
discussed above. The most salient findings are:
7.7.1 Whilst the experts
agree that L will be able to work, her cognitive and psychological
restrictions will prevent her from achieving
her full potential. She
will not reach the same level of schooling as she would have been
able to do but for the sequelae of the
injuries sustained in the
accident.
7.7.2 L will not be an
equal competitor in the open labour market.
7.7.3 Periods of
unemployment will be more likely postmorbid than it would have been
in the pre-injured scenario.
7.7.4 Her mental capacity
is diminished although the experts agree that her physical ability
does not appear to be diminished as
result of the injuries.
7.7.5 L’s career
opportunities will be considerably more limited as result of the
sequelae of the injuries. She is destined
for unskilled employment
and even then, her opportunities will be limited as result of her
mental restrictions. She will thus not
be an equal competitor for
unskilled labour.
7.7.6 L will on
probabilities not be flexible as she will struggle to learn and adapt
both scholastically and in the workplace.
7.7.7 Due to L’s
age and the fact that she is still a scholar, she has never earned an
income and is still too young to know
what her career intention would
be.
7.7.8 The findings of the
Educational Psychologist regarding L’s probable scholastic
performance in the uninjured state, is
the most reliable marker in
the circumstances, namely that L would have obtained Grade 12 (NQF 5)
in uninjured state and NQF 2/3
in injured state.
7.7.9 In the
circumstances, considering L’s limitations in injured state,
the unemployment statics are relevant. At the end
of 2020 the
unemployment figure in South Africa was 29.2%. The International
Monetary Fund predicted a further rise in the unemployment
rate in
South Africa as result of the National State of Disaster and the
effect of the lockdown regulations. Although this will
affect both
injured and uninjured persons, the impact for injured persons is much
more devastating and more so, where the person’s
options are
limited and he/she is not an equal competitor, even in the unskilled
sector.
7.7.10
L would have also faced periods of unemployment in the uninjured
scenario and may have been prone to unskilled / semi-skilled work.
7.7.11
L’s neurocognitive and neuropsychological problems is a
concern
as it is well documented that employees with mental and specifically
behavioural problems may struggle to keep their jobs.
7.8 The
calculations of probable earnings need not be considered since the
amounts determined by the actuaries
before contingencies are applied,
are not in dispute.
7.9 The
actuarial report calculates the value of the future income (estimated
future income) which L would have
earned but for her injuries
and consequent disability [uninjured future earnings] before
contingencies are taken into consideration
in the sum of R 2 808 100.
The injured earnings are calculated in the sum of R 663 300.00 less a
contingency of 30% totalling R
464 310.00.
[8]
As stated, as far as loss of earnings is concerned, the dispute
revolves solely around
the contingency deduction to be applied to the
pre-morbid earnings. The plaintiff contends that a contingency
deduction of 25%
is fair and reasonable considering the facts of this
matter and the expert evidence, whilst the defendant in turn contends
that
a contingency of 35% would be appropriate.
[9]
It is well established that the
enquiry
into damages for loss of earning capacity is by its nature
speculative.
[1]
In
Phalane
v Road Accident Fund
[2]
the Court explained that contingencies, ‘by their very nature,
is a process of subjective impression or estimation rather
than
objective calculation’.
[10]
I accept that ‘the younger the victim, the longer the period
over which the vicissitudes
of life will operate and the greater the
uncertainty in assessing the claimant's likely career path’.
[3]
[11]
The defendant’s argument for the 35% contingency deduction is
premised in the main on the
following submissions:
11.1 L was 4 years
11 months of age and still attending crèche when the accident
occurred. As result no school reports
are available for comparison.
11.2 L’s
siblings’ educational progress is at best not good.
11.3 Unemployment
is rife in the family.
11.4 L’s
mother admitted to using alcohol whilst being pregnant with her.
11.5 The fact that
L was very young when she was injured means that there is a long
period over which the ‘vicissitudes
of life will operate’
and the greater the uncertainty in assessing L's likely career path.
11.6 The facts of
this case are similar to those that the Courts considered in:
11.6.1
M Makupula v
Road Accident Fund
(1635/07) [2010] ZAECMHC 17 (8 April 2010) [
M
v RAF
]. The defendant quoted the following passage from para 11
of the judgment in the heads of argument in substantiation of the
argument:
‘
Mr de Kock’s
assessment was premised on the impact of traumatic brain injury on
educational progress of Mzuchumile without
taking into account the
total picture of the child’s developmental history. The report
shows that Mzuchumile was involved
in the accident, had no sibling
from whom to match his development and that his parents and maternal
uncles and aunts had an educational
path which did not go beyond
standard 9 education. Those members of the family who were employed
performed work which required
semi-skill or no skill at all.
Therefore, there will be adjustments to be applied as requested by
Mr
Rugunanan
because Mzuchumile’s profile, prior to and
after the motor collision, reflected negatively on his educational
and vocational
success.’
11.6.2
Manolele obo M v Road Accident Fund
(13758/13) [2017] ZAGPPHC
345 (1 March 2017) [
Manolele
] in which judgment the Court
applied a 35% contingency where the child was still attending a
crèche and no school reports
were available to enable the
educational psychologist to compare her education pre- and
post-accident.
[12]
Regarding the defendant’s reliance on the plaintiff’s
admission that she used alcohol
during her pregnancy, the evidence on
record establishes that there were no birth or antenatal
complications, and L reached her
developmental milestones within the
expected norm. There is nothing to suggest that this would or had any
impact on L’s mental
or educational abilities. The relevant
experts certainly did not make such a finding.
[13]
Whilst there are certain communalities between the facts in
M
v RAF
and this matter, there are also material differences. The most
prominent is the fact that the child in
M
v RAF
had learning problems premorbid. In the words of N
hlangulela
J,
M’s
“educational development profile was affected by learning
problems”.
[4]
The learned
Judge concluded that the expert assessment in that matter, where 25%
deduction was proposed, was premised on the impact
of traumatic brain
injury on educational progress of the child without considering the
total picture of the child’s developmental
history.
[14]
There is no evidence in
casu
that L had learning
problems before the accident or that her premorbid educational
profile was affected by learning problems. Prior
to the accident the
reports from the school, albeit L was in Grade R, stated / recorded
that she was making pleasing progress.
The accident occurred on 22
August 2015 and as result of her injuries L did not return to school
that year. L was notwithstanding
considered to be ready to proceed to
Grade 1 based on her performance before the accident. Her premorbid
intellectual level was
determined to be
at least
average.
According to the relevant experts L would have obtained Grade 12
(matriculate (NQF4)) and depending on her final matriculation
results
could have proceeded to tertiary education at a TVET- College to
study towards a higher certificate (NQF5), had the means
and
opportunity been available to her.
[15]
I am alive to the fact that L’s father completed Grade 8 and
was last employed as farm
worker during 2018; that her mother dropped
out of school during Grade 10 and has never been employed; that the
highest familial
secondary education is Grade 11, that unemployment
is rife within the family; and that although there is no substantial
indication
that L suffered from significant premorbid deficits, that
with regard to premorbid cognitive functioning, the presence of a
subtle
vulnerability in this regard cannot be excluded given the
reported educational history of her parents and brother.
[16]
The relevance of familial information regarding education and
occupation in matters of this ilk
is undeniable. It must however
always be considered within context. The Industrial Psychologist
accepts the findings of the Educational
Psychologist regarding L’s
probable scholastic performance in the uninjured state as the most
reliable marker in the circumstances,
namely that L would have
obtained Grade 12 (NQF 5) in uninjured state and NQF 2/3 in injured
state. This evidence of the relevant
experts is uncontested and is
underpinned by proper reasoning. I also bear in mind that the
Industrial Psychologist opines,
whilst accepting the Educational
Psychologist’s conclusions, L would have also faced periods of
unemployment in the uninjured
scenario and may have been prone to
unskilled / semi-skilled work.
[17]
In this matter L’s grandparents, parents, aunts, and uncle were
born and raised in a vastly
different setting from what we live in
today. The inequalities entrenched by apartheid are specifically
relevant insofar as education
and occupational history of the elder
members of this family are considered when assessing L’s
possible career path and loss
of earnings. In
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
[5]
Moseneke
DCJ explained:
[45] Apartheid has left
us with many scars. The worst of these must be the vast discrepancy
in access to public and private resources.
The cardinal fault line of
our past oppression ran along race, class and gender. It authorised a
hierarchy of privilege and disadvantage.
Unequal access to
opportunity prevailed in every domain. Access to private or public
education was no exception. While much remedial
work has been done
since the advent of constitutional democracy, sadly, deep social
disparities and resultant social inequity are
still with us.
[46] It is so that white
public schools were hugely better resourced than black schools. They
were lavishly treated by the apartheid
government. It is also true
that they served and were shored up by relatively affluent white
communities. On the other hand, formerly
black public schools have
been and by and large remain scantily resourced. They were
deliberately funded stingily by the apartheid
government. Also, they
served in the main and were supported by relatively deprived black
communities. That is why perhaps the
most abiding and debilitating
legacy of our past is an unequal distribution of skills and
competencies acquired through education.’
[18]
In similar vein the effects of apartheid on social and economic
development were considered in
Madzodzo
and Others v Minister of Basic Education and Others
[6]
where the Court held as follows:
‘
Our
own history demonstrates the role that education plays in shaping
social and economic development. Apartheid education has left
a
profound legacy, not only in the unequal and inadequate distribution
of resources but in the appalling levels of literacy and
numeracy
still found in the general population as a consequence of decades of
unequal and inadequate education. As noted in Juma
Musjid (at para
42):
"The
inadequacy of schooling facilities, particularly for many blacks was
entrenched by the formal institution of apartheid,
after 1948, when
segregation, even in education and schools in South Africa was
codified. Today, the lasting effects of the educational
segregation
of apartheid are discernible in the systemic problems of inadequate
facilities and the discrepancy in the level of
basic education for
the majority of learners. "’
[19]
Whilst it remains a valuable indicator which must be accorded
sufficient weight when the familial
history is considered, due
consideration must also be accorded to the historical context in
which L’s grandparents, parents,
uncle and aunts underwent
their schooling as well as the unequal distribution of skills and
competencies and limited opportunities.
[20]
In considering the totality of the evidence a contingency
deduction of 25% from the premorbid earnings is appropriate in the
circumstances.
[21]
The capital value of loss of earnings suffered by L therefore amounts
to the sum of R 1 641 765.00
which is calculated as follows:
Premorbid
earnings: R 2 106
075.00 [R 2 808 100.00 less 25% contingencies], less
Postmorbid
earnings: R 464 310.00 [R 663
300.00 less 30% contingencies].
[22]
Claims for general damages are not awarded as measure of retaliation
and punishment for injury
suffered as result of negligence. It has a
salutary purpose. Moseneke DCJ explained in
Van
Der Merwe v Road Accident Fund and Another (Women's Legal Centre
Trust as Amicus Curiae)
[7]
at para 56:
‘
What is crucial
for the present purpose is that the law of damages recognises special
and general damages to afford the fullest
possible redress for
delictual harm. Both classes of damages seek to redress the
deterioration or reduction of the quality or usefulness
of a legally
protected interest. In both cases the injured party loses something
and receives money as reparation. Stated differently,
the principal
object of damages, whatever the kind, is to 'neutralise loss through
the addition of a new patrimonial element'.’
[8]
[23]
Farlam, J, as he then was, held in
Van Wyk v SANTAM Bpk
1998
(4) SA 731
(C) 735c-h:
‘…
.., an
award of money cannot really compensate a plaintiff for pain and
suffering, loss of amenities, disfigurement, etc. There
is indeed no
norm for determining in monetary terms the extent of such general
damages. As was said by Windeyer J in Papanayioutou
v Heath
(1970)
ALR 105
at 112 (quoted by Luntz Assessment of Damages 2nd ed at 158 n
6):
''What is a reasonable
sum for general damages for personal injuries cannot be measured and
tested as a reasonable price can be,
by the experience of the
market-place.''
It follows that there may
be even amongst lawyers a marked difference in their assessment of
the monetary value to be placed on
loss of a non-pecuniary nature. It
is for this reason that a Court of appeal will not interfere with an
award of general damages
made by a trial court merely because it is
considered to be too high or too low. And in making such an award a
court does not have
regard only to the interests of the plaintiff; it
also bears in mind that too heavy a financial burden should not be
placed upon
the defendant.’
[24]
In
determining general damages the awards in
previous
cases of similar facts and law are a useful guide. Consistency
guarantees fairness. This does not by any measure imply
that the
Court’s discretion is replaced with a mechanical approach. Each
case is determined on its own facts and the court
exercises its
discretion with due consideration to those facts.
[9]
[25]
The plaintiff contends that an award of R 650 000.00 for general
damages is fair and reasonable
considering the facts of the matter.
The plaintiff referenced the following cases as being comparable in
support of the argument.
The gist of the factors taken in
consideration, summarised, were as follows:
25.1 In
MTA
obo MK v RAF
[10]
where an 8-year-old child sustained a mild
concussive
brain injury, visible laceration on the forehead and hematoma of the
forehead. He presented with symptoms of a depressive
disorder and
persistent post-traumatic stress disorder was present. The court
considered the physical injuries and loss of amenities
of life as a
result of depression and awarded R 400 000.00 as general damages
which has a present-day value of R 475 559.98.
25.2
Regarding L’s facial disfigurement, in
Visser
v Visser
[11]
a minor male sustained severe bite wounds to the face involving large
flap laceration involving the middle section of the forehead
above
the right eyebrow; a second laceration through the right eyebrow; a
degloved wound of the right side of the cheek below the
right lower
eyelid with tissue loss; a full thickness laceration to the upper lip
as well as lacerations in the neck which were
down to the plasma
level. The Court awarded R 70 000.00 as general damages which has a
present-day value of R 109 000.00.
[26]
The defendant argues that an amount of R 450 000.00 would be fair and
reasonable when considering
the facts of this case.
The
defendant referenced the following cases as being comparable in
support of the argument. The gist of the factors taken in
consideration,
summarised, were as follows:
26.1 In
Nkosi
v Road Accident Fund
[12]
the plaintiff had lacerations on the head, a concussion, fractured
ribs and hand fractures. The Court awarded R 250 000.00 as general
damages which has a present-day value of R 470 195.58.
26.2
In
M
Makupula v Road Accident Fund
[13]
a 5-year-old boy sustained a mild to moderate brain injury with
neurocognitive deficits, hyperactivity disorder, memory dysfunction,
uncooperative and aggressive behaviour, poor concentration, poor
executive functioning and school performance. He also suffered
broken
teeth and injuries to the inside of his mouth. The Court awarded R
300 000.00 as general damages which has a present-day
value of R 542
065.68.
26.3
In
Bikawuli
v Road Accident Fund
[14]
a 16-year-old boy suffered a moderate brain injury with cognitive
fallout, memory impairment, behavioural changes, fatigue, headaches
and dizziness. The Court awarded R 135 000.00 as general damages
which has a present-day value of R 243 929.55.
26.4
In
Sterris
v Road Accident Fund
[15]
,
a 41-year-old male security officer, 37 years old at time of injury
sustained a brain injury of moderate severity; fractures of
the
femur, scapular and clavicle and would require hip and knee
replacement procedures in the future. The plaintiff was obliged
to
use a cane to aid mobility. He experienced headaches, dizziness,
fatigue, concentration difficulties, and personality changes.
The
Court awarded R 250 000.00 as general damages which has a present-day
value of R 470 195.58.
26.5
In the case of
M
v Road Accident Fund
[16]
a 4-year-old child sustained a mild concussive brain injury and a
right femur fracture which left him with a scar on his right
thigh
approximately 20cm long. The Court awarded the amount of R 400 000.00
as general damages which has a present-day value of
R 454 822.35.
[27]
In considering the past awards with relation to the facts of this
matter as detailed in the expert
reports, which includes the physical
injuries, the permanence of the disfigurement (regardless of
successful
major surgical intervention),
the future surgical intervention, the nature and effect of the
neuropsychological and cognitive deficits and
difficulties coupled with expected duration and resultant
loss
of amenities an award of R 600 000.00 for general damages is fair and
reasonable in the circumstances.
Accordingly,
IT IS
ORDERED THAT
:
1.
An order is granted in terms of the draft order, marked ‘NS’,
dated and signed, as amended to reflect the following amounts in
paragraph 1 thereof:
“
Payment
by the defendant to the plaintiff in the sum of R 2 241
765.00 (TWO MILLION TWO HUNDRED AND TWENTY-SIX THOUSAND
SEVEN
HUNDRED AND SIXTY-FIVE RAND) which amount is compiled as follows:
1.1
Future loss of income R 1
641
765.00
1.2
General damages R 600 000.00,…”
N
SNELLENBURG, AJ
APPEARANCES:
On behalf of the
plaintiff: Adv
L. Le R Pohl SC
On
instructions of: Mr.
HL Buchner
Honey
Attorneys
Bloemfontein
On
behalf of the defendant: Mrs.
C Bornman
State Attorney
Bloemfontein
[1]
Southern
Insurance Association v Bailey N.O.
1984(1) SA 98(A) on page 113G.
[2]
2014
JDR 0303 (ECP) at 19.
[3]
Bee v
RAF
2018 (4) SA 366
(SCA)
para 116.
[4]
M v RAF above, p
ara
11 to be read with para 9.
[5]
2010 (2) SA 415 (CC) (2010 (3) BCLR 177; [2009] ZACC 32).
[6]
2004 (3) SA 441
(ECM) para 19.
[7]
2006 (4) SA 230 (CC).
[8]
Visser et al Visser en Potgieter's Law of Damages 2nd ed (Juta &
Co Ltd, Lansdowne, 2003) at 165.
[9]
De
Jongh v Du Pisani
2005 5 SA 457
para 64.
[10]
(4484/16) [2018] ZAGPJHC (18 June 2018).
[11]
(2012),
QOD VI, G4-1.
[12]
(07/2195)
[2009] ZAGPJHC 42 (24 April 2009.
[13]
(1635/07)
[2010] ZAECMHC 17 (8 April 2010).
[14]
(6B4)
QOD, decided in 2010.
[15]
2009
6 QOD B4-26 (WCC).
[16]
[2019]
ZAGPPHC 588 (GP).