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[2022] ZAFSHC 307
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Thozamile v Road Accident Fund (3022/2020) [2022] ZAFSHC 307 (31 October 2022)
FLYNOTES:
GENERAL DAMAGES – CLAIM OF HEIR
Motor
collision – General damages – Severe head injury –
Passing away 3 years and 7 months after accident
– Claim by
heir – Award in plaintiff’s lifetime to bring
consolation to plaintiff for suffering –
Award to be on
conservative side when devolving on heirs.
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
number: 3022/2020
In
the matter between:
MAKHUBULO
THOZAMILE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM
:
AFRICA, AJ
HEARD
ON:
7 SEPTEMBER 2022
DELIVERED
ON
: This judgment was handed down electronically by
circulation to the parties' legal representatives by email. The date
and
time for hand-down is deemed to have been at 15h00 on the 31st of
October 2022.
JUDGMENT
[1]
Plaintiff ("the claimant") instituted an action against the
defendant for personal injury damages arising
out of a motor vehicle
collision which took place on or about the 30th of March 2018, at or
near Louis Road, 2010 Village, Thabong
in Welkom. It is pleaded that
the collision occurred when the unknown insured vehicle collided with
the claimant who was a pedestrian
at the time.
[2]
It is common cause that the claimant passed away on the 7th of
November 2021 after the pleadings have closed. The
claimant is
represented by his son, who is the executor of the deceased estate
and has substituted the claimant as plaintiff herein
[1]
.
[3]
The issue of merits became settled, and same is apportioned 80% /
20%, in favour of the plaintiff. The only issue
in dispute and for my
determination, is the quantum of general damages, with the issue of
loss of earnings and future medical expenses
being abandoned.
[4]
Premised on plaintiff's expert reports ("Bundle 6''), it is
submitted that R1 600 000 would be a fair and reasonable
amount, in
respect of general damages.
[5]
It is not in dispute that claimant was 55 years old at the time of
the collision and 58 years old, at the time of
his demise. Thus, a
period of 3 years, 7 months and 7 days has lapsed from the date of
collision to the date of death.
[6]
It is common cause that the defendant produced no medico legal
reports and acceded the correctness of the plaintiff's
reports. The
matter was accordingly argued on the conclusions as expressed in the
various medico legal reports provided by the
plaintiff.
[7]
In quantifying the general damages suffered, the court is referred to
the following expert reports:
A.
Doctor Kelly is a Specialist Neurosurgeon, who examined the plaintiff
on the 27th of January 2021. He opined that
the plaintiff sustained
severe traumatic brain injury and was treated for the following
injuries:
•
Head injury-confused and
disorientated GCS 13/15 on scene, improved to GCS 14/15 upon arrival
at hospital with clear fluid leaking
from the right ear. He remained
confused and disorientated for approximately 2 weeks after the
accident. CT brain is normal.
•
Blunt facial trauma with
swollen forehead.
•
Blunt facial trauma with
loss of two central maxillary incisors.
•
Soft tissue cervical
spine injury, CT cervical spine is normal.
•
Soft tissue lumbar spine
injury.
•
Left fibula fracture.
X-ray left leg = fibula fracture, managed conservatively with a
plaster of Paris.
[8]
Plaintiff was admitted for neuro-observations, not operated on and
discharged on the 9th of April 2018. He was not
ambulant on discharge
and used crutches for a period of three months, post-accident. He was
reviewed multiple times in the outpatient
clinic at Bongani Hospital,
but was never readmitted.
[9]
The main complaints alluded to by plaintiff, were headaches, memory
problems, mood disorder, difficulty eating,
lumbar spine pain and
left leg pain.
[10]
The prognoses made, is that plaintiff is suffering from
post-concussion headaches, with recovery estimation within 2 to 3
years, however, ±20 % of patients remain with chronic
symptoms. As the plaintiff was examined 3 years after the accident,
Dr Kelly opined that spontaneous resolution of these headaches can
still occur.
[11]
Dr Kelly opined that the plaintiff suffered with acute pain for 12
weeks after the accident and suffered chronic pain to date.
[2]
Plaintiff's amenities of normal living were lost during the period of
hospitalization. He could not perform any activities of daily
living
immediately after the accident and currently needs assistance with
most, but not all activities of daily living. Plaintiff
was no longer
able to play soccer. Whole person impairment was assessed at 35%.
[12]
Doctor Bongobi is an Orthopaedic Surgeon, who examined the plaintiff
on the 19th of February 2021 and opine that the examination
done was
limited to orthopaedic injuries. The plaintiff presented with
complaints of headaches 3-4 times a week, relieved by analgesics.
Plaintiff had loss of front teeth, but did not consult a dental
expert. Plaintiff also presented with lower back pain and stiffness
in the lumbar spine exacerbated by lifting of heavy objects and
bending for a long period, with pain in inclement weather. Lastly,
plaintiff further presented with left knee and lower leg proximal leg
pain and swelling exacerbated by standing and walking for
a long
period. Whole person impairment was assessed at 12%.
[13]
Doctor Grootboom is a Clinical Psychologist, who examined the
plaintiff on the 10th February 2021. Her findings are that
plaintiff's
neuropsychological test results revealed mild to
significant neurocognitive outcomes. She referred to the report of
doctor Kelly,
which indicates that plaintiff sustained severe
traumatic brain injury and noted that expected deficits from a severe
TBl
[3]
include compromise in the
areas of attention, memory, working memory, language and executive
functioning, with reported functional
cognitive limitations which
include memory and concentration problems.
[14]
Further, that plaintiff's neurocognitive outcomes are likely to be a
combination of his premorbid functioning, exacerbated
by severe head
injury sequalae including his reported pain during the assessment.
Ongoing pain is expected to play a significant
role in difficulties
with attention and concentration, memory and visual scanning.
[15]
It was recommended that plaintiff attend 20 sessions of psychotherapy
to address accident related symptoms of adjustment difficulties,
situational anxiety and major depressive disorder.
LEGAL
PRINCIPLES
[16]
It is settled law that a trial Court has a wide discretion to award
what it in the particular circumstances considers to be
a fair and
adequate compensation to the injured party for his bodily injuries
and their sequalae, as enunciated in the case of
AA Mutual Insurance
Association Ltd v Maqula
[4]
•
[17]
In the case of Protea Insurance Company v Lamb
[5]
,
it was stated that although the determination of an appropriate
amount for general damages is largely a matter of discretion of
the
court, some guidance can be obtained by having regard to previous
awards made in comparable cases, however, as stated by the
learned
Potgieter J
[6]
;
"
••• this process of comparison does not take the form
of meticulous examination of awards made in other cases
in order to
fix the amount of compensation, ... Comparable cases, when available,
should rather be used to afford some guidance,
.. .in cases where the
injuries and their sequelae may have been either more serious or Jess
than those in the case under consideration.
"
CASES
REFERRED TO BY THE PLAINTIFF
[18]
In the matter of Dlamini v Road Accident Fund
[7]
, plaintiff was a 37 year old male involved in a motor vehicle
collision. The plaintiff sustained a head injury. The Plaintiff
has
made good recovery but was still symptomatic with neuropsychological
sequalae consistent with head injury of that nature. The
psychometric
testing confirmed that his neuro-cognitive function has been
seriously impaired by the accident. No meaningful improvement
can
reasonably be expected of the plaintiff. The plaintiff sustained a
severe head injury and a fracture of the maxilla and teeth.
He is
left with neuropsychological sequalae because of the head injury. The
Experts agreed that although the plaintiff has not
developed post
traumatic seizures, he now has an increased risk of developing
seizures. The plaintiff's test results showed that
his
neuro-cognitive functioning has been seriously impaired by the
accident. He is experiencing inner stress and finds it difficult
to
control his impulses especially aggression and irritation. He has
difficulty in expressing himself and finding the right words.
The
court awarded Dlamini R850 000, in 2012, which is R1 320 109. 87 in
2021.
[8]
[19]
In the matter of Coetzee N.O. obo Komane v Road Accident Fund
[9]
,
the plaintiff sustained a severe traumatic brain injury, as she had
post traumatic amnesia for about two weeks. She also had base
skull
fractures around the eye with a bad cosmetic-outcome of the facial
scars. She also has features of Post Traumatic Psychosis
(catatonia)
and mental regression. She had a fracture of the nasal bone and
lacrimal bone and cribriform plate. The plaintiff has
15% chance of
developing epilepsy from the traumatic brain injury.
[10]
[20]
Plaintiff submits that these two cases are more similar to the one in
casu and therefore this court should not deviate from
them. Further
that plaintiff has been affected by the severe head injury and the
sequalae both physically and psychologically,
with 10% chance of
epilepsy. It is submitted that R1 6000 000.00 is a reasonable and
fair considering the sequalae and comparable
case law.
[11]
[21]
Defendant submits that the facts pertaining to the injury and
sequalae in the matter of Dlamini (supra), is closer to the facts
in
the present matter, but distinguishable, in that Dlamini was a 37-
year old male at the time of the collision, (18 years younger
than
the deceased at the time of the collision) and would Dlamini
therefore have had to live much longer with the injuries and
sequalae
thereof, than the deceased herein. It is therefore submitted that
having regard to the age of Dlamini, a similar award
would not be
appropriate.
LEGAL
PRINCIPLE REGARDING DECEASED CLAIM
[22]
Plaintiff referred this court to the case of Nkala and Others v
Harmony Gold Mining Company Limited-time and Others
[12]
,
where plaintiff sued for general damages but who has died, and who
would, but for his/her death, be entitled to maintain the action
and
recover the general damages in respect thereof, will be entitled to
continue with such action notwithstanding his/her death.
The person
who would have been liable for the general damages if the death of a
plaintiff had not ensued remains liable for the
said general damages
notwithstanding the death of the plaintiff so harmed. Such action
shall be for the benefit of the estate of
the person whose death had
been so caused.
[13]
[23]
It is submitted that a fair and reasonable amount should be awarded
to the plaintiff's executor, it being the same amount the
court would
have awarded to the plaintiff if he was still alive. The amount of R1
600 000.00, is submitted to be fair and reasonable
under the
circumstances.
[14]
[24]
In deviation with the submissions made by the defendant in relation
to the awarding of a fair and reasonable amount to the
deceased
estate, similar as if the plaintiff was still alive, defendant
referred this court to the case of Du Bois v Motor Vehicle
Accident
Fund
[15]
. The court dealt
with a claim for general damages by the estate of the deceased, who
passed away 5 ½ years after she sustained
the injuries. The
court having evaluated the medical reports as well as the sequalae of
her injuries, limited the calculation of
damages to a period of 5½
years. The court stated that it further takes into consideration that
it is logically and legally
compensating the claimant, but in effect
the claimant's two sons, her heirs, for the claimants five and a half
years of pain and
suffering, disability and her loss of amenities of
life.
[25]
The court stated that in the normal course of events, this award
would have benefitted the claimant and even though it could
have been
described as excessive and in the end could have accumulated during
her lifetime, it would have been used to alleviate
her lot in life or
bring her pleasure or consolation. The court further stated that any
award it made for the claimant's suffering
ultimately devolves on her
heirs. This factor influences the court on the conservative side of
what it should award the plaintiff
for the claimant's pain and
suffering, etc. That the award it is about to make, does not emanate
from first establishing what would
have been awarded the claimant for
general damages had she still lived till 57 or 58 years of age, that
is 27 years from the date
of the collision instead of the five years
and six months therefrom, the court stated that it did not arrive at
the award by dividing
that amount by five because the claimant only
lived approximately one fifth of the 27 years, but the award arrived
at is what the
court think is fair in all the circumstances of that
case.
[16]
[26]
This court's attention was drawn to the fact that what in essence was
considered by the court in the matter of Du Bois, in
arriving at an
amount which it believed to be fair and reasonable in the
circumstances were;
a)
Comparable rewards;
b)
The period during which the claimant lived with her injuries and the
sequalae
thereof;
c)
The fact that the award would have been used to alleviate her lot in
life; and
d)
That the award for her suffering now ultimately transferred to the
heirs in her estate.
[27]
In arguing with reference to the aforesaid, the defendant submits
that when combining the factors listed supra, and combining
it with
the period of 3 years, 7 months and 7 days, which the deceased lived
with the injuries and the sequalae thereof post collision,
the
appropriate award to be made would be between R250 000.00 and R350
000.00, pre-apportionment of 20%.
[28]
The court in the Nkala matter
[17]
sought to make sense regarding the transmissibility of claims for
damages (whether general or specific) to the heirs or the estate
of
the deceased. The court further stated that as far back as the period
when the formulary system was in place, the Roman law
allowed for the
transmissibility of claims for or against heirs of a deceased
litigant once the stage of litis contestatio had
been reached and
such transmissibility was not affected by the nature of the claim.
[29]
The matter of Nkala (supra) thus had to grapple with the issue of
transmissibility of claims for damages, pre-litis contestatio
whether
or not instituted by way of class action or an individual plaintiff.
To his end, the court stated:
[18]
"In
conclusion, we hold that the common law should be developed as
follows:
1.
A plaintiff who had commenced suing for general damages, but who has
died, whether arising from harm caused
by a wrongful act or omission
of a person or otherwise, and whose claim has yet to reach the stage
of litis contestatio, and who
would but for his/her death be entitled
to maintain the action and recover the general damages in respect
thereof, will be entitled
to continue with such action,
notwithstanding his/her death; and,
2.
The person who would have been liable for the general damages if the
death of a plaintiff had not ensued remains
liable for the said
general damages, notwithstanding the death of the plaintiff so
harmed;
3.
Such action shall be for the benefit of the estate of the person
whose death had been so caused: (my emphasis)
4.
A defendant who dies while an action against him has commenced for
general damages arising from harm caused
by his wrongful act or
omission, and whose case has yet to reach the stage of litis
contestation, remains liable for the said general
damages,
notwithstanding his death, and the estate of the defendant shall
continue to bear the liability, despite the death of
the defendant."
[30]
This indeed has been the reasoning in other decided cases such as in
the case of Road Accident Fund v Mtati
[19]
where the Supreme Court of Appeal endorsed the decision in Jankowik
[20]
. Thus, if litis
contestatio had been reached at the time of the death of the
deceased, then his claim for general damages had transmitted
to his
estate.
[31]
Premised on the above emphasis, plaintiff in the present matter
argues that this court should award the same amount to plaintiff's
estate, as would have been the case, had plaintiff still be alive.
The Nkala case, with respect, does not support the plaintiff's
approach to this matter.
[32]
When the quantification of a claim for non-pecuniary loss is
undertaken it is important to remember that the mere physical
injury
does not per se constitute non-patrimonial loss. As stated in
Sigournay v Gil/banks
[21]
:
"Injuries may leave after-effects and may cause mental anxiety
but they are not themselves pain". The highly personal
nature of
pain and suffering is emphasised by the dicta in Radebe v Hough
[22]
that someone's social and financial status or his race cannot give an
indication of his pain and suffering. The amount awarded
for pain and
suffering depends on the extent of pain and suffering caused by the
delict, and nothing else. Pain can exist only
in so far as it is
actually experienced
[23]
. In
light hereof a court is potentially in a very difficult position
regarding the calculation and determination of an award for
a claim
for non-pecuniary damages when, as in the present case, where no viva
voce evidence was led by the Plaintiff pertaining
to the actual
suffering of pain or loss of amenities. The court is basically
obliged to revert solely to previous awards made in
more or less
similar matters when exercising its discretion since the Plaintiff's
very personal experience of pain and suffering
or loss of amenities
of life cannot be discounted.
[33]
Defendant argues that the court should be mindful that some of the
ages of the victims in the comparable cases, were younger
than the
plaintiff, notwithstanding the fact that they suffered some kind of
brain injury with sequelae. As indicated, this court
only has the
hearsay evidence of the experts who confirm what they have been
informed of by the Plaintiff in that he mainly suffered
from
headaches, memory problems, mood disorder, difficulty eating, lumbar
spine pain and left leg pain. Notwithstanding the fact
that Defendant
conceded and confirmed that the hearsay evidence contained in the
expert reports may be taken into consideration
for quantification
purposes, the court is still left to wrestle with what is fair and
reasonable, in the circumstances of this
case.
[34]
This court agrees that because of the highly personal nature of pain
and suffering, pain can exist only in so far as it is
actually
experienced. This court thus accords with the reasoning as employed
in the case of Du Bois that the award to be made would
have
benefitted the claimant during her lifetime and it would have been
used to alleviate her lot in life or bring her pleasure
or
consolation. Further, the fact that the award to be made for the
claimant's suffering, will ultimately devolve on her heirs,
influences this court on the conservative side of what it should
award the plaintiff for the claimant's pain and suffering. It
is
trite that the award of general damages must be fair to both the
plaintiff and the defendant
[24]
.
[35]
As stated, the deceased was 55 years old at the time of the collision
and 58 years old, at the time of his demise. From the
death
certificate, it appears that the deceased was never married and that
the cause of death was natural causes. There was no
submission that
the cause of death was as a direct result of the injuries sustained
and its sequa/ae. Prior the collision, the
deceased was in good
health and was his longevity not affected by the accident. The
deceased never attended school, but he appeared
to be of average
intelligence. The deceased who resided in an informal settlement is
survived by 1 child and 3 siblings. He was
employed as a car washer
at the Welkom Taxi Rank, at the time of the accident.
[36]
Dr Kelly opined that notwithstanding the main injuries complaint of
being headaches, memory problems, mood disorder, difficulty
eating,
lumbar spine pain and left leg pain, the investigative findings shows
that CT brain and cervical spine scans were normal,
with a left leg
fibula fracture. The plaintiff used crutches for a period of 3 months
and was never readmitted. Dr Kelly remarked
that that the deceased
had a 10% chance of developing late onset post traumatic epilepsy,
but his longevity has not been affected
by the accident.
[37]
The life expectancy of the deceased, as opined by Dr Kelly, is
reduced by immobility, incontinence result in urinary infections
and
septicaemia, swallowing difficulties, epilepsy degree of cognitive
and intellectual damage, severe behavioural problems and
chronic
depression and suffered with chronic pain to date of report.
OTHER
COMPARABLE CASES
[38]
In MTA obo MK v RAF
[25]
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.
[39]
In Nkosi v Road Accident Fund
[26]
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.
[40]
In the case of Makupula v Road Accident Fund
[27]
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.
[41]
In the case of Bikawuli v Road Accident Fund (6B4) QOD, decided in
2010,
[28]
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.
[42]
I also bear in mind, inter alia, what has often been quoted in our
case law in Sandler v Wholesale Coal Suppliers Ltd
[29]
:
"(T)he
law attempts to repair the wrong done to a sufferer who has received
personal injuries in an accident by compensating
him in money, yet
there are no scales by which pain and suffering can be measured, and
there is no relationship between pain and
money which makes it
possible to express the one in terms of the other with any approach
to certainty. 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."
[43]
This court in seeking guidance and applying the factors listed in the
case of Du Bois (supra), looked at and read the decided
comparable
cases; taken into consideration that it is logically and legally
compensating the claimant but in effect the claimant's
one child; for
the claimant's three years, 7 months and 7 days of pain and
suffering, loss of amenities of life; the fact that
in the normal
course of events this award would have benefited the claimant and it
would have been used to alleviate his lot in
life or bring him
pleasure or consolation; that any award this court makes for
claimant's suffering ultimately devolves on his
heirs, a factor
influencing the court on the conservative side of what the court
should award the plaintiff for the claimant's
pain and suffering.
[44]
I am mindful that merely following the trend to grant high awards
slavishly does not take cognisance of the view of Holmes
J in Pitt v
Economic Insurance Co Ltd
[30]
that: "[T]he court must take care to see that its award is fair
to both sides - it must give just compensation to the plaintiff,
but
it must not pour out largesse from the horn of plenty at the
defendant's expense."
[45]
In light of the circumstances of this case as set out above, the
detailed expert reports and consideration of previous awards,
I am of
the view that an amount of R650 000.00 is a fair and reasonable award
for the non-pecuniary loss suffered by the claimant,
as a result of
the injuries sustained ad it's sequalae.
ORDER
[46]
Accordingly, the following is made:
1.
The defendant is therefore ordered to pay the plaintiff an
amount of R700 000.00 (seven hundred thousand
rand),
pre-apportionment, with costs, in respect of general damages.
AFRICA,
AJ
Counsel
on behalf of the Plaintiff:
Adv. Baloyi
Instructed
by:
S.B. Seshibe Attorneys
Counsel
on behalf of the Defendant:
Adv. Gouws
Instructed
by:
State Attorney
[1]
Annexure "X" Notice of Substitution.
[2]
27 January 2021.
[3]
Traumatic brain injury.
[4]
1978 (1) SA 805 (A).
[5]
1971 (1) SA 530
(A) at 535H-536A.
[6]
at pages 534 to 536B.
[7]
(10/39907) [2012] ZAGPJHC 13 (21 February 2012).
[8]
Paragraph 6.3 of plaintiff's Heads of Argument.
[9]
(30699/15) [2020] ZAGPPHC 295 (26 June 2020).
[10]
Paragraph 6.4 of plaintiff's Heads of Argument -.
[11]
Paragraph 6.5 of plaintiff Heads of Argument.
[12]
2016 (5) SA 240 (GJ).
[13]
Paragraph 7.1 of plaintiffs Heads of Argument.
[14]
Paragraph 8 of plaintiffs Heads of Argument.
[15]
1992 (4) SA 368
(T).
[16]
Paragraph 6.1 to 6.3 of defendant's Heads of Argument.
[17]
Paragraph 176
[18]
Paragraph 220.
[19]
2005 (6) SA 21)(SCA)
at para [39]
[20]
Jankowiak and Another v Parity Insurance Co (Pty) Ltd
1963 (2) SA
286
(W) at 290D-E
[21]
1960 (2) SA 552
(A) at 571.
[22]
1949 (1) SA 380
(A) at 385.
[23]
Sigournay v Gillbanks, supra, 571.
[24]
De Jongh v Du Pisanie 2005 (5) SA 457 (SCA).
[25]
(4484/16) [2018] ZAGPJHC (18 June 2018).
[26]
(07/2195) [2009] ZAGPJHC 42 (24 April 2009.
[27]
(1635/07) [2010] ZAECMHC 17 (8 April 2010).
[28]
(6B4) QOD, decided in 2010.
[29]
1941 AD 194.
[30]
1957 (3) SA 284
(D) at 287E-F.