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[2021] ZAGPPHC 275
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R.S.M v Road Accident Fund (10405/2018) [2021] ZAGPPHC 275 (25 April 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number
10405/2018
In
the matter between
RS
M[….]
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
This
is an application for leave to appeal against an order I made on 15
December 2020 for general damages. On the trial date
the matter
proceeded on a default basis, there was no appearance for the
defendant.
1.
In making an award for general damages the Court
has a wide discretion to award a sum that is fair and reasonable
compensation to
the applicant/plaintiff.
2.
A court is also to ensure that the defendant is
not unreasonable burdened.
3.
The purpose of non- pecuniary awards is to put
the claimant, as far as is reasonably possible, back in a position
she would have
been in had the accident not occurred.
4.
In this matter the defendant has tendered an
undertaking for 100% of all future medical expenses which the
applicant/plaintiff is
likely to incur.
5.
The experts report that the applicant/plaintiff
is to undergo several further surgeries and procedures. I noted
the estimated
costs thereof.
6.
I noted further that the applicant/plaintiff who
unfortunately lost her right leg because of the accident, was
provided with a walker
frame and a wheelchair on discharge from the
hospital. I also noted that she attended several occupational
therapy sessions
where she was able to ambulate with the help of a
prosthetic leg and a frame walker.
7.
Having considered the usual factors of age,
gender and occupation as vendor, my view is that R900 000 would
be adequate compensation
in the circumstances.
The
Injuries
7.
Advocate Matika appeared for the plaintiff and he presented the court
with a set of heads of argument. He agreed
that the plaintiff
suffered the following injuries:
7.1
an above knee amputation of the right leg
7.2
left humerus shaft fracture
7.3
left distal tibial shaft fracture.
7.4
left tibial plateau fracture.
7.5
right distal femur fracture associated with femoral injury.
7.6
mild traumatic brain injury, which in my view was doubtful given
that
the reports of the neurosurgeon record a mild head injury and in the
RAF 4 form a moderate head injury, whilst the clinical
psychologist
recorded that the plaintiff denied having suffered a head injury.
The hospital records do not reflect any treatment
for this injury.
Although I noted that the applicant sustained a 3cm scar on her upper
lip.
7.2
She was scarred on:
7.2.1
left arm (between 1 and 2cm).
7.2.2
upper lip 3cm
7.2.3
right lower limb (the amputated leg)
7.2.4
left leg operation scars
7.3
The plaintiff suffered trauma, emotional shock, disfigurement and was
rendered permanently
disabled. Her whole person impairment
score was assessed at 67% by medical doctors.
7.4
She in any event qualifies for compensation for general damages, on
the narrative test as
per the requirements of the Act and
regulations, due to the loss of a limb.
8.
Advocate Matika submitted that my reference to the case
Msiza v
RAF 2014 (7E 20 QOD 1 (GNP),
is distinguishable in that the whole
person impairment scores differed, and that this applicant’s
injuries were assessed as
more serious.
8.1
Counsel further pointed out that in that case the court awarded a
higher amount for general
damages.
9.
Counsel’s further submissions were that:
9.1
the applicant’s left leg and ankle is severely compromised, as
it needed further surgery
and that she is at risk of suffering
osteoarthritis in the future. He submitted the court must bear
in mind the “once
and for all rule” if she should no
longer be able to use the left leg as well in the future.
9.2
the applicant/plaintiff is an “ordinary/unsophisticated”
claimant, who in her
response to the clinical psychologist regarding
her head injury, may in all probability have misunderstood him at the
time.
He directed me the reports of other experts who confirm
that she suffered a mild injury to her head.
9.3
the reference to HIV status contributing to her depressive state
should be viewed against
the “thin skull principle” i.e.,
you take your claimant as you find him”.
9.4
the court was also alerted to the fact that in practise, claimants
have a difficult time
accessing services of medical doctors by way of
the undertaking since the defendant delays payments of invoices.
9.5
comparative cases, albeit must serve as guides, do award more for
similar injuries.
10.
Advocate Matika submitted that in terms of s 17(1)(a)(ii) where there
are conflicting judgments
on a matter, a court may allow leave to
appeal.
11.
This matter is of importance to the applicant and her access to
proper health care.
Another court may apply its discretion differently, on the facts of
this matter.
Accordingly, the
application for leave to appeal to the Full Bench, is granted.
I order, as follows:
1.
Leave to appeal is granted to the Full Bench.
2.
Costs to be costs in the cause.
MAHOMED,
AJ
Heard
on 22 April 2021
Delivered
on 25 April 2021
Appearances:
For
applicant: Advocate Matika
Cell
no. 073 009 7867
Instructed
by: B Dlova Inc
Tel.
012 323 1728