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[2019] ZAGPPHC 21
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Brouwer N.O v Road Accident Fund (22517/2012) [2019] ZAGPPHC 21 (4 February 2019)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
NOT REVISED.
Case No. 22517/2012
4/2/2019
In
the matter between:
ADV.
A PJ BOUWER
N.O
PLAINTIFF
(N
W S)
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MILLAR,
AJ
1.
The
plaintiff is the
curator ad litem
of
N W S, a minor child who suffered severe injuries at the age of 5
when a motor vehicle crashed into his home on 18 September
2010 and
injured him where he was playing next to the house.
2.
A
claim for damages arising out of the injuries suffered was submitted
to the defendant, the statutory body responsible for such
claims in
terms of The Road accident Fund Act
[1]
.
Liability was conceded on 18 October 2017.
3.
The
matter came before me for the determination of the quantum of general
damages, it was agreed between the parties that the defendant
would
furnish an undertaking to compensate the minor for his future
hospital, medical and associated expenses in terms of section
17(4)(a) of the Act. It was also agreed that a trust should be
established for the benefit of the minor child for the reasons set
out in the application for the appointment of the plaintiff and that
due to his present age of 14, that the determination of loss
of
income should be postponed
sine die.
4.
It
was agreed by the parties that the matter would be argued on the
reports before the court. Both counsel submitted that since
the
experts were in agreement as to the injuries, their sequelae and the
any future treatment and having regard to those injuries,
although
the minor and his grandmother were present at court and available to
testify, that the issue could be determined without
oral evidence so
as to spare, in particular the minor, the ordeal of having to relive
the collision and the ordeal that has become
his life. In the
interests of the minor I agreed and the matter was argued on the
papers in chambers.
5.
The
minor was examined by 13 different medical experts. The experts are
largely in agreement as to the injuries suffered, the treatment
envisaged and the sequelae of those injuries. The minor sustained:
5.1
a
chronic subdural haematoma with resulting increased intercranial
pressure caused by a large arachnoid cyst placing pressure on
the
brain;
5.2
a mild traumatic brain injury;
5.3
an open book pelvis fracture;
5.4
a
subluxation of the left sacro-iliac joint with left leg shortening, a
widened symphysis pubis and soft tissue injuries;
5.5
a
urethral rupture/bladder neck rupture resulting in urine
extravasation and a complete stricture of the urethra;
5.6
a
left femur fracture; and
5.7
severe
neurocognitive and neuropsychological sequelae.
6.
The
minor was seriously injured in the collision and transported
initially to the Barberton Hospital where he was resuscitated.
The
initial diagnosis of the injury was an open book fracture of the
pelvis with displacement of the sacroiliac joints. A fracture
of the
inferior pubic rami, a fracture of the left femur and a rapture of
the posterior urethra were also made. He ended up with
a supra-public
catherization which has now become septic, pus draining and painful.
His right leg is 45° externally rotated
and he has severe
cystopyelonephirtis which needs urgent urological attention.
7.
The
rupture of the posterior uretha results in a urine leak into the
perineum. He also developed a peroneal abscess which had to
be
drained. Originally he had also sustained a laceration to his scrotum
which was sutured. Due to the fact that he could not pass
urine, a
supra-pubic cystostomy was done with an indwelling catheter.
Presently the patient's psycho-social status is seriously
compromised. He has no bladder or rectal control and has a severe
infection present for which he needs urgent admission and attention
in hospital.
8.
The
minor's current medical situation is complicated and he will first
need radiological examination to determine the extent of
the injury
and whether or not anything can ever be done to improve his
condition. His fertility has been affected due to the fact
that he
has a urethral stricture and he will not be able to ejaculate and
will probably have to resort to assisted reproduction
techniques for
fertility purposes when he is older.
9.
Currently
he is totally incontinent of urine and smells of urine all the time.
It is difficult for him to go to school and future
employment will
also be difficult in his current situation.
10.
Furthermore
an MRl (magnetic resonance imaging) scan of the brain was done on 27
November 2018 which showed a large arachnoid cyst
with evidence of
pressure on the brain. It was said that this has been present for a
long time and is collision related.
11.
He also presents with significant
symptoms of depression that can be attributed to a combination of
factors including his ongoing
pain and discomfort, sequelae arising
from his injuries as a result of which he is forced to wear nappies,
and the teasing from
his peers in this regard.
12.
"From
a
social
and emotional point of view, going to school is
a
complete and utter nightmare for the
patient. He is called names like Mr. Pampers and on more than one
occasion his grandmother
had to go to school to deal with the
children that are teasing
him.
When the patient had an accident, he will just sit in the dirty
diaper until he gets home or his family will be called to fetch
him
if it gets too bad. Nobody in the class wants to sit next to him or
play with him
[2]
.”
and
"At the time of the
assessment, the patient grandmother informed Ms Swart that the
patient had not been at school for two weeks
due to
a
phone call
received from the teacher who told the grandmother that the patient
was ill and needed to get better first before he
could go back to
school."
[3]
13.
It is trite that while awards for
general damages made in previous cases provide guidance, each case
must be decided on its own
facts.
[4]
14.
In
my opinion, it is neither appropriate nor practical to attempt to
break down either the individual heads of general damages or
for that
matter the individual injuries suffered and to make an award
piecemeal. The minor suffered the damages that he did in
an
indivisible fashion and the award should take account of this.
Counsel referred me to a number of cases where awards were made
in
respect of similar injuries - although there is no case that can be
said to be on all fours with the present one. See for example
Bay
Passenger Transport v Franzen
[5]
where a 21-year-old male with similar urological injuries was awarded
R30 000,00 in 1974-having a present value of R1 850 000,00
and Kgomo
v Road Accident Fund
[6]
where an award of R800 000,00 for similar head injuries was made in
2011 - the present value being R1 222 532.
15.
I have considered the injuries sustained
and when they were sustained together with all their sequelae over
the lifetime of the
minor. The consequences of the collision have
deprived him of the life he would otherwise have had. Any treatment
or interventions
that will be undertaken to ameliorate the sequelae
will only ever be palliative and not curative. For this reason, in
the exercise
of my discretion I awarded the sum of R1 600 000,00 in
respect of the claim for general damages.
16.
In the circumstances I made the draft
marked "X" with the amendments to paragraphs 7.15 and 10 to
annexure "A"
of that draft an order of court.
A
MILLAR
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
31 JANUARY
2019
JUDGMENT
DELIVERED ON:
31 JANUARY 2019
REASONS
FOR JUDGMENT:
4 FEBRUARY 2019
COUNSEL
FOR THE PLAINTIFF:
ADV I DELPORT
INSTRUCTED
BY:
FRANS
SCHUTTE MATHEWS PHOSA INC.
REFERENCE:
MS D DE JONG
COUNSEL
FOR THE DEFENDANT: ADV M MAGAGANE
INSTRUCTED
BY:
MALULEKE MSIMANG & ASSOCIATES
REFERENCE:
MR H MSIMANG
[1]
56 of 1996
[2]
The current situation as described in the report of the curator
after having interviewed the minor child and his grandmother.
[3]
At the time of the examination with the educational psychologist.
[4]
See Minister of Safety & Security v Seymour
2006 (6) SA 320
(SCA) at paragraphs 16 to 18
[5]
1974 (2J2) QOD 419 (A); see also Pillai and Another v New India
Assurance Co Ltd 1961 (1H5) QOD 213 (N); Richter and Another
v
Estate Hammann 1976 (2H2) QOD 550 (C);
[6]
(25846 /1
0) (2011) ZAGPHC 103
(2 September 2011); Mohale v Road
Accident Fund (33835/2012) (2014) ZAGP