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[2019] ZAGPPHC 154
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Mthimunye v Road Accident Fund (40765/2015) [2019] ZAGPPHC 154 (11 April 2019)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 40765/2015
11/4/2019
In
the matter between:
TOLI
CLARA MTHIMUNYE
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
PHAHLANE
, AJ
INTRODUCTION
[1]
The plaintiff instituted action against
the defendant herein, the Road Accident Fund as a result of the motor
vehicle accident which
occurred on the 16
th
August 2014 near Witbank, N4 Highway. Plaintiff who was a back-seat
passenger aboard a bakkie, reportedly lost consciousness upon
impact
and was transported by an ambulance to the Witbank General Hospital.
It is reported that she regained consciousness after
± two
days and was admitted for two weeks.
[2]
The plaintiff was 44 years old at the
time of the motor vehicle accident and she was unemployed.
[3]
It is averred in paragraph 7 of the
plaintiff's particulars of claim that as a result of the aforesaid
accident, the plaintiff sustained
Head injuries and certain bodily
injuries.
[4]
The plaintiff served and filed Notice in
terms of Rule 28, to amend paragraph 10 of its Particulars of Claim
to read that:
The
Plaintiff has suffered damages in the amount of R 1 248 612.00 which
amount are comprised as follows:
10.1
Past hospital, medical and related
expenditure
R 10 000.00
10.2
Estimated future medical hospital and
related expenses R 200 000.00
10.3
Past loss of earnings/earning capacity
R 140 785.00
10.4
Future loss of earnings/earning capacity
R 147 827.00
10.5
General damages
R 750 000.00
TOTAL
R
1 248 612.00
ISSUES
FOR DETERMINATION
[5]
At the commencement of the proceedings,
Advocate Sevhukwana on behalf of the plaintiff informed the court
that the merits of the
matter were previously settled 100% in favour
of the plaintiff. He also informed the court that, there was also an
offer on loss
earnings as is and that his instructions were to accept
and/or admit same. The only issue in dispute and for my determination
is
the quantum of general damages.
[6]
The matter came before me on the basis
that neither of the parties would lead oral evidence and that issues
in dispute were to be
determined by the court solely on the evidence
contained in the various experts' reports filed by the plaintiff and
the submissions
made during argument. The defendant produced no
medico-legal reports and conceded to the correctness of the plaintiff
s reports.
The injuries are common cause and the impact on the
plaintiff and the
sequelae
are
reflected in the reports of the experts. In this Judgment, I will
focus only on the reports I was referred to by counsels as
they
confined themselves to the primary experts which have made the
diagnosis regarding the nature and extent of the injuries suffered
as
a result of the accident.
[7]
In assessing the amount to be awarded to
the plaintiff for general damages, the following reports were
considered:
Dr
Peter T. Kumbirai - Orthopaedic Surgeon
[8]
He stated that the plaintiff sustained
Head injuries with Glasgow Coma Scale of 12/15; right knee injury;
right ankle injury and
right shoulder with right acromio
clavicular joint dislocation. He notes that the X-rays of the right
shoulder done by Drs.
Bezuidenhout, Van Niekerk & Partners Inc,
Radiologists showed: Rockwood Type Ill acromio-clavicular joint
dislocation with
complete disruption of the acromio-clavicular joint
capsule and coraco-clavicular ligaments. The clinical and
radiological findings
were 10% UEI and 6% WPI
[9]
He further stated that the plaintiff
suffered severe acute pain for two weeks which subsided over four
weeks and as a result, plaintiff
continued to suffer the
inconvenience and discomfort of pain in the right shoulder, right
knee, and right ankle which is exacerbated
by prolonged standing,
walking and lifting of heavy weights, and that the acromio-clavicular
joint is chronically dislocated with
prominent clavicle.
[10]
He opines that the plaintiff will benefit from an open reduction plus
reconstruction of the coraco-clavicular
ligaments to reduce the
dislocation, correct the deformity, improve the weight-carrying
capacity of the shoulder girdle and improve
the quality of life.
[11]
He noted the plaintiff’s complains and stated the
sequelae
of head injury that - there was personality changes in that
plaintiff was short-tempered; had recurrent headaches; poor shot-term
memory; and poor concentration span. According to him, serious
long-term impairment/loss of body function has been suffered; as
well
as severe long-term mental and behavioural disturbances or disorder
due to the
sequelae
of head-injury have been suffered as
confirmed in the RAF 4 signed by him. He further stated that the pain
in the right shoulder,
right knee and right ankle will limit her
choice of occupation as occupations which require prolonged standing,
walking and lifting
of heavy weights will aggravate her symptoms. She
will not be able to compete fairly in a job on the open labour
market.
Dr L.F. Segwapa -
Neurosurgeon
[12]
He also stated that the plaintiff
suffered head injuries with initial GCS of 11/15; soft tissue injury
to the lower back (spine);
musculoskeletal - abrasions on the hands,
and she's reported to have never been in an accident before.
[13]
The doctor noted that plaintiff suffered
headaches which were experienced at least four times a month and has
memory problems in
that she is forgetful since the accident. He
stated that the records showed that on the day of the accident, her
GCS was ranging
between 11/15 and 12/15 and two days later it had
improved to 15/15. However, these are features of a moderate
traumatic brain
injury either due to direct trauma or secondary to
acceleration deceleration effects of the impact.
[14]
Regarding post-accident status, he
stated that plaintiff has neurocognitive impairments. She should
undergo detailed neuropsychological
evaluation by the clinical
psychologist to determine the extent of her cognitive impairment. The
risk of developing epilepsy is
currently at 3-5%. She is suffering
from post-concussion headaches and that it is well documented in the
neurosurgical literature
that ± 80% of patients suffering from
post-concussion headaches recover within 2-3 years. However ±
20% of patients
remain with the chronic symptoms. He concluded by
saying that it would be fair to award adequate compensation for the
damages incurred
as a result of the injuries sustained in the
accident.
Dr
JFL Mureriwa - clinical psychologist
[15]
A report compiled by Dr Mureriwa
confirms what has been noted by the Neurosurgeon as well as the
Orthopaedic Surgeon regarding the
injuries sustained and the impact
of the accident. He noted that immediately after the accident,
plaintiff was unconscious as she
was found lying on the ground as she
has been thrown out of the vehicle. On the clinical status and
behaviour of the plaintiff
during hospitalization, he stated that
plaintiff was confused and could not remember things that happened
from the day of the accident
does not remember anything about the
accident itself or hospitalisation.
[16]
According to him the overall disability
is moderate but performance of life activities is severely affected.
The EEG phase abnormalities
indicate failure of inhibitory mechanisms
which renders the plaintiff vulnerable to attention problems, anxiety
and poor impulse
control. The EEG deviations from normal and the
psychological problems to which they give rise, are consistent with
the mild traumatic
brain injury of which she was diagnosed. The
estimated duration of post-traumatic amnesia according to him was 1-4
weeks and states
that it was very severe.
[17]
Counsel for the plaintiff submitted that
what is contained in all the reports is an indication that the
plaintiff has been healthy
before the accident, a point which was
never disputed.
[18]
Relying on the case of
Mkhonta
v RAF (20703/12) [2018] ZAGPPHC 471 (29 March 2018)
plaintiff's counsel argued that
an amount of R950 000.00 is a fair and reasonable amount to be
awarded to the plaintiff. In this
case, the plaintiff was awarded the
sum of R760 000.00 made up as R950 000.00 less the apportionment of
20%
[19]
This court will reiterate on what was said by Sekhukhune AJ that:
[12] "The uncontested
experts reports have outlined the injuries, sequelae in details, the
reasons for findings made and opinions
expressed and the defendant
could not offer any substantial dispute regarding the opinions and
findings of these experts.... ...
... .."
And
"In making an award, a
Judge has a large discretion to award what the judge in the
circumstances to be fair and adequate compensation
to the injured
party for the sequelae of the injuries, see Protea Assurance Company
Ltd v Lamb
1977 (1) SA 530
".
[20]
Counsel also referred this court to the
case of
B v RAF (247712015)
[2017] ZAECPEHC 42 (5 September 2017
)
and argues that this court
should take into consideration the fact that the undisputed experts
reports, the sequalae of the injuries,
and the affirmation by the
defendant's counsel that the findings of the experts were a true
reflexion of the plaintiff's injuries
and that those injuries cannot
be separated, are factors which should persuade this court to award
the plaintiff the same amount
of damages awarded to the plaintiff in
the case of
Mkhonta supra.
[21]
I interpose to state that counsel for
the defendant provided me with Heads of Arguments in support of his
closing argument, for
which I am indebted. However, I take note of
the fact that these heads of argument are in support of the arguments
made by counsel
on behalf of the plaintiff.
[22]
Counsel for the defendant referred to
the same reports the plaintiff's counsel referred the court to - and
that is the report of
the Neurosurgeon Dr L.F. Segwapa where he made
a finding on the severity of the Head injuries that the plaintiff
sustained a moderate
to a severe traumatic head injury - and counsel
submitted that this finding was supported by a Clinical psychologist
Dr Mureriwa.
[23]
He informed the court that the defendant
did not appoint experts and that there was an offer of R400 000.00
for general damages
that was previously made by the defendant and
such could riot be justified as it was too little. He told the court
that this offer
was not sufficient at all as it was only directed at
the head injuries and overlooking and/or not considering the
orthopaedic injuries
noted by the Orthopaedic surgeon. He submitted
that the plaintiff's experts (ie. Dr Segwapa - Neurosurgeon) makes it
very clear
that the severity of the injuries emanated from the Head
Injuries and that there were other soft-tissue injuries sustained by
the
plaintiff.
[24] He
further submitted that this is a compelling factor which his client
(ie. RAF) should have considered
when tendering an offer on General
Damages. He states that the defendant decided to intentionally and
deliberately overlook this
aspect. He concluded by saying an amount
of between R650 000 . 00 and R800 000.00 was justifiable.
[25]
I agree with the submission made by
plaintiff's counsel that the nature and extent of the injuries and
sequelae
must
be taken into account holistically when determining the award for
damages. The injuries cannot be assessed on their own without
the
resulting
sequelae .
[26]
I have consider d several cases as well
as the cases referred to by both counsels during argument in making
submissions on the amount
that should be awarded as general damages
or the determination of what constitutes an appropriate award.
[27]
JJ Gauntlett SC in
The
Quantum of Damages
Volume 1, Fourth
edition, Juta, 1995 page 5 referred to the case of
Sandler
v Wholesale Coal Supplies
1941. AD 194
where the learned Watermeyer
JA at page 199
stated :
"..
.It must be recognized
that though the law attempts to repair the wrong done to a sufferer
who
has
received personal Injuries in an accident by
compensating him in money,
.
.there are no scales by which
pain and suffering can be measured,
...
The amount to be
awarded as compensation can only be determined by the broadest
general considerations".
[28]
In the
Road
Accident Fund v Marunga
2003 (5) SA 1.65
SCA
the Supreme Court of Appeal
confirmed the
dictum
of
Broom DJP in
Wright v Multilateral
Motor Vehicle Accident Fund 1997 NOP-Corbett and Honey: The Quantum
of Damages in Bodily and Facial Injury
Cases Vol 4 at E3-31
where
it was set out:
"I consider that when
having regard to previous awards one must recognise that there
is
a
tendency for
awards now to be higher than they were In the past. I believe this to
be a natural reflection of the changes in the
society, the
recognition of greater individual freedom and opportunity, rising
standards of living and the recognition that our
awards in the past
have been significantly lower than those In most countries''
[29]
In
AA
Mutual Insurance Association Ltd_v Maqula
1978 (1) SA 805
(A),
the
court held:
"It is settled law that a
trial Court has a wide discretion lo 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 sequelae".
[30]
In the case of
Protea
Insurance Company v lamb
1971 (1)_ SA 530
(A) at 535H·,
it was stated that:
"Although the
determination of an appropriate amount for general damc1ges 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 at pages 534 to
5368;
"..
.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 less than those
in the case under consideration.
''
[31] l In
De Jongh v Du Pisani
2004 (12) All SA 565
(SCA ),.at,,682i
it
was reiterated that:
"the court in determining
quantum for general damages must have regard to previous comparable
cases. The principle is that
an award will be fair if it demonstrates
consistency with previously decided cases of a similar nature. In
doing
so,
however, it must
not be overlooked that a court is vested with a discretion which is
to be exercised with due regard to the peculiar
facts
of
the matter it is
seized with''.
[32]
It should be noted that the use of
comparable cases is not a hard and fast rule that should be strictly
applied. Two cases can never
be the same, hence the need for judicial
adjudication in cases for general damages. See
Road
Accident Fund v Marunga
supra.
[33]
Having regard to the reported cases. the
expert reports and arguments presented , I am of the view that an
amount of R860 000.00
is fair, just and reasonable amount to be
awarded for the general damages suffered by the plaintiff.
[34]
Turning to the issue of loss of
earnings, counsel for the defendant submitted that the amount
tendered for loss of earnings is a
fair and reasonable amount. He
stated that he agrees with the submissions made by the plaintiff's
counsel. He concluded by submitting
that the court is entitled to
exercise its discretion to decide on the amount which has to be
awarded to the plaintiff by taking
into consideration the fact that
the plaintiff suffered severe head injuries as well as soft tissue
injuries which cannot and should
not be ignored.
[35]
In
Road
Accident Fund v. Guedes
2006 (5) SA 583
(SCA) 587 A - B.
the Supreme Court of Appeal
addressing the assessment of compensation and a trial Judge's
discretion stated:
"The court necessarily
exercises a wide discretion when it
assesses
the quantum of
the damages due to loss of earning capacity and has a large
discretion to award what it considers right. Courts have
adopted the
approach that to assist in such a calculation, an actuarial
computation is a useful basis for establishing the quantum
of
damages. Even then, the trial court has a wide discretion to award
what it believes
is
just."
[36]
There are no opposing expert reports from the defendant regarding
this issue. Under the circumstances,
I am of the view that the
actuarial calculations as depicted on a report compiled by Robert
Koch's Actuarial dated 8
th
October 2018 are correct. I
take note of the fact that plaintiff's counsel also informed the
court when the matter was proceeded
with, that there was an offer on
loss earnings as is and that his instructions were to admit or accept
the offer, and counsel for
the defendant confirmed same. The
plaintiff is therefore entitled to be awarded an amount of R 288
612.00 in respect of loss of
earnings which in my view is a fair.
reasonable and equitable amount.
[37]
I note that counsel for the parties
handed me a draft order with terms to which they confirmed to court
that they were a reed upon
by both, but omitting aspects I was still
to find on.
ORDER
In
the result I make the following order:
1.
The draft order marked
X
attached hereto is made an order of
court.
P. D. PH AHLANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Heard
on
: 05 April 2019
For
the Plaintiff
:
Adv T.M. Sevhukwana
Instructed
by
: LEPULE MOKOKA INC
For
the Defendant
: Adv O. Molibana
Instructed
by
: BRIAN RAMABOA INC
Date
of Judgment
: 11 April 2019
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION
-
PRETORIA)
CASE NO.: 40765/2015
Held on THE 05
TH
April
2019 at Court 6D
Before the Honourable Justice
Phahlane AJ
In
the matter between:
TOLI
CLARA MTHIMUNYE
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
DRAFT
ORDER
Having
heard counsels, and having read the papers filed of record:
IT IS ORDERED
1.
The Defendant concedes merits 100% in
favour of the Plaintiff;
1.1
That the Defendant pay Plaintiff the sum
of R1 148 612,00; comprised as follows;
1.1.1
An amount of R860 000,00; in respect of
General Damages;
1.1.2
An amount of R288 612,00;
in respect of
Loss of Earnings,
such amount to be deposited into Lepule, Mokoka Inc. Trust
Account No
ACCOUNT HOLDER
: LEPULE MOROKA
INCORPORATED
BRANCH NAME
: PRETORIA
ACCOUNT NUMBER :
1497 147697
BANK NAME
:
NEDBANK
BRANCH CODE
: 160445
TYPE OF ACCOUNT
: TRUST
REFERENCE
:
MR
LEPULE/XX4116
1.2 The capital amount referred to
in paragraph 1 above will not bear ir,t0rest unless the Defendant
fails to effect payment thereof
within Fourteen (14) calendar days of
the date of this Order, in which event the capital amount will bear
interest at the rate
of 10.25% per annum calculated from and
including the fifteenth (15) calendar day after the elate of this
Order to and including
the date of payment thereof.
2.
The
defendant shall furnish the Plaintiff with an undertaking for future
medical expenses in terms of section 17(4)(a) of the Road
Accident
Fund Act as amended resulting from a motor vehicle accident which
occurred on the 16
th
of August 2014.
3.
The
Defendant to pay the Plaintiff’s taxed or agreed party and
party costs on the High Court Scale such costs to include but
not
limited to:
3.1
The costs incurred 1n obtaining payment
of the amounts mentioned in paragraph 1.
3.2
The costs of and consequent to the
employment of counsel including counsel's charges in respect of his
full preparation fee as well
as his High Court day fees including for
the 01
st
March 2019 and 05
th
April 2019.
3.3
The costs of all medico-legal, Joint
minutes, addendum reports and radiological obtained by the Plaintiff
as Well as such reports
furnished to the Defendant and/or its
Attorneys. as well as all reports in their possession and all reports
contained in the Plaintiff's
bundles if any.
3.3.1
The
reasonable and taxable preparation. qualifying and reservation fees.
if any, in such amount as allowed by Taxing Master, of
the experts
mentioned in 3.3 above:
3.3.2
The
reasonable costs incurred by and on behalf of the Plaintiff, as well
as the costs consequent to attending the medico legal examination
of
both parties;
4.
There is valid contingency fee agreement
between Plaintiff and Plaintiff' s attorney.
5.
In the event that costs are not agreed
the Plaintiff agrees as follows:
5.1
The
Plaintiff shall serve the Notice of Taxation on the Defendant's
attorney of record ;
5.2
The
Plaintiff shall allow the Defendant 14 (fourteen) court days to Make
payment of the costs.
5.3
Should
payment not be effected timeously , Plaintiff will be entitled to
recover interest at the rate of 10.25% on the taxed or
agreed costs
from date of
allocator
to
date of final payment
BY
ORDER OF COURT
R E G I S T R A
Plaintiff's
counsel: T.M Sevhukwana
Cell
no
:
071 129 2098
Defendant's
Counsel: O Molibana
Cell
no
:
084 830 8100