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[2019] ZAGPPHC 49
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Sayed NO v Road Accident Fund (25897/17) [2019] ZAGPPHC 49 (6 March 2019)
REPUBLIC OF SOUTH AFRICA
IN THE IDGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO: 25897/17
6/3/2019
In
the matter between:
ADV
S SAYED NO.
(CURATOR
AD LITEM OF CJ BROWER)
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
SKOSANA
AJ
[1]
The
plaintiff herein sues the defendant for damages arising from injuries
sustained in a motor collision. The plaintiff was represented
by Adv
Dredge and the defendant by Adv Soni. Both counsel informed me that
the claim has been settled in respect of the merits,
the future
medical expenses by way of undertaking in terms of section 17(4) of
the RAF Act 56 of 1996 and loss of earning and earning
capacity at R1
244 772-60.
[2]
The
only remaining aspect on which I am called upon to decide is in
relation to the proof of the existence of general damages and
the
quantum thereof.
[3]
It
was indicated from onset that defendant's counsel has not been
favoured with instructions in regard to this head of damages nor
has
defendant filed any expert reports in that regard.
[4]
On
the other hand, Mr Dredge, before taking me through various expert
reports, referred me to two pre-trial minutes on the basis
of which
he contended that the defendant has conceded or must be regarded as
having conceded to the existence of general damages
to Mr Brower. In
addition, he referred me to the judgment of Makgoka J in the matter
of Magaqana against the present defendant
in relation to the limited
effect of the reservation-of-rights clause, especially where such
rights have not been exercised during
the agreed period. I accept
that approach.
[5]
I
am not going to set out the details of the excerpts of the
plaintiff's expert opinions that Mr Dredge took me through. Suffice
to state that all such expert opinions point to significant brain and
cognitive impact that the accident had on Mr Brower's well-being,
which was permanent in effect.
[6]
To
mention some of the conclusions reached by these experts, I refer to
the following:
[6.1] The Neurologist, Dr
Smuts who found that Mr Brower sustained concussive head injury with
associated moderate
to severe diffuse axonal brain injury;
[6.2] The Special Neuro
Surgeon, Dr Moja, who concurred with Dr Smuts;
[6.3] The Psychiatrist, Dr
Fine, who found that Mr Brower sustained a head injury with
significant organic brain
damage;
[6.4] The Counselling
Psychologist, Dr Jonker, who concluded that Mr Brower suffered from
neuro-cognitive impairment
leading to long-term cognitive changes.
[6.5] The Urologist, Dr Van
Heerden who established that Mr Brower suffered from neurogenic
bladder which resulted
from the head injury and which makes it
difficult for Mr Brower to hold urine;
[6.6] Dr Fredericks, who
assessed Mr Brower's impairment and found that his whole person
impairment measured at
34%.
[7]
In his heads of argument, Mr Dredge persuaded me that a figure of R1
million is not
out of kilter with the guideline provided by previous
case law in respect of similar injuries. Mr Soni stated that he was
not able
to differ with this submission.
[8]
The
curator ad litem, Adv Sayed also submitted that the creation of a
trust will better serve Mr Brower who has still retained some
cognitive abilities to utilize funds as long as they were not huge
amounts. The trust will be able to provide funds to him in the
form
of monthly emoluments. She was also agreeable with the contingency
fee arrangement in respect of the plaintiff's legal representatives.
[9]
In
the result, I am satisfied that an order as contained in the draft
order which I mark
" X" ,
is just and appropriate in the
present case. Consequently, I make an order accordingly.
DT
SKOSANA
Acting Judge of the High Court