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[2019] ZAGPPHC 476
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Makae obo T v Road Accident Fund (53151/2016) [2019] ZAGPPHC 476 (12 April 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
CASE NO: 53151/2016
12/4/2019
In
the matter between:
MAKAE
THABO obo T
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
MAFAFO, AJ
INTRODUCTION.
[1]
The Plaintiff, in his representative
capacity as the biological father of
("the
minor child"),
T, born on 20th
February 2002, instituted an action against the Defendant, a juristic
person in terms of the provisions of Act 56
of 1996 as amended
("the
RAF Act”)
pursuant to a
collision between the minor, who was a pedestrian and the driver of
the motor vehicle
("the insured
driver'?
on the 03 November 2009 as
result of which the minor sustained injuries.
[2]
The
minor was 7 years old at the time of the accident and currently 17
years old.
[3]
In
the particulars of claim, it was alleged that the said collision was
caused by the negligent driving of the insured driver which
resulted
in the minor sustaining severe head injury which is expected to be of
a permanent nature.
[4]
At
the commencement of this trial, the parties had settled merit at 100%
in favour of the Plaintiff and it was agreed by the parties
that the
Defendant would furnish the Plaintiff with an undertaking in terms of
section 17(4) (a) of the Road Accident Fund Act
to cater for future
medical and related expenses.
[5]
The
issue of and loss of earning capacity was also resolved between the
parties.
[6]
The
parties agreed to create a trust wherein a trust deed shall be used
as a vehicle for the protection of the minor child's funds.
[7]
It
is common cause that the minor child had been staying with the
grandmother since his mother died in 2012.
[8]
Both
Counsel for the parties confirmed that the aforesaid settlement
agreement shall be incorporated and merged into the Court's
judgment.
[9]
It
was further agreed by the parties that neither party shall lead oral
evidence, instead the parties shall rely on the opinions
of various
medico-legal experts and relevant case law.
THE
FACTS.
[10] The Plaintiffs
minor child who was 7 year old boy when he was run over by a speeding
motor vehicle
on the 3
rd
November 2009 while he was crossing the street. The grandmother
reported that he was taken by ambulance to hospital in Sterkspruit.
He was later transferred to Pelonomi hospital. The minor child was
hospitalized for 27 days, 5 days in ICU due to severe head injuries.
[11]
Pre-accident, it was reported to the
Industrial Psychologist that the minor child enjoyed good health and
he enjoyed playing soccer.
[12]
Dr. Smith reported on the hospital
records that the minor was semi-conscious and very restless. Both
eyes were closed and the injured
eye was dressed.
[13]
At the time of his discharge from
hospital the physiotherapists reported that his Glasgow Coma scale
was 15/15 but he was still
not capable of talking.
COMMON CAUSE FACTS.
[14]
In his opening address, Counsel for the
Defendant placed the following on record as common cause:-
14.1
The injuries sustained and the sequelae
thereof;
14.2
The contents of the expert's reports;
14.3
The joint minutes of overlapping experts
and
14.4
Further that the minor child is indeed
entitled to general damages.
ISSUE FOR DETERMINATION.
[15]
Consequent
to the aforesaid settlement agreement, the only unresolved issue
between the parties and which I am required to determine
is the
determination of a fair and reasonable amount for compensation in
respect of pain and suffering, discomfort, disability,
disfigurement
and loss of amenities of life which the Plaintiff is entitled to.
INJURIES SUSTAINED AND THE SEQUELAE
THEREOF.
[16]
The
minutes of the overlapping neurosurgeons, Dr LL Lankerster and Dr
Muballe, read as follows:
The minor child sustained a severe head injury
which included:
16.1.
"Traumatic brain injury with
initial Glasgow Coma of 4/15;
16.2.
C.T scan demonstrates cerebral oedema,
subarachnoid haemorrhage, multiple contusions of left occipital and
temporal lobes;
16.3.
Multiple skull fracture which include:
16.3.1.
Fracture of left frontal bone and
superior -orbital rim;
16.3.2.
Fracture of left parietal bone;
16.3.3.
Fracture of left occipital bone;
16.3.4.
Base of skull fracture, including
mastoid".
[17]
The Neurosurgeons further agreed and
stated on their joint minutes signed and dated 29 March 2019 that:
"Since being injured he has experienced
difficulty with schooling and deterioration in his cognitive
functions, has already
been confirmed by a Clinical Psychologist.
These cognitive deficits were confirmed in 2013
and they are therefore, likely to be of a
permanent nature,
with
the result that this prospects with regard to the education level he
achieves and his subsequent choice of career, have been
compromised."
[18]
According
to the Ophthamologist, the minor child sustained the following
injuries on his eyes:
18.1
'Episodic swelling of the left eyelids
with longstanding aches, as a result of motor vehicle accident';
18.2
Facial asymmetry with elevated facial
scars on the left side of the face.
[19]
In addition to the head injury, Dr.
Lankerster reported on page 17 of his report that "He also
sustained contusion to both
lungs and this required treatment with
daily physiotherapy."
[20]
The Educational Psychologist, Ms. Human
reported on page 12 of her report that during his intellectual
functioning assessment, he
found that " there was a disparity
between verbal and non -verbal scales which suggests that there is
left hemisphere damage
to the brain which is consistent with poor
academic performance, learning disabilities and poor reading"
[21]
The Educational Psychologist went on to
report that the minor childs' performance suggests that he is
intellectually impaired.
[22]
Educational Psychologist further
recommended a special school placement for the minor child while
awaiting special school placement,
the minor should receive remedial
support.
SUBMISSIONS.
[23]
Counsel for the defendant submitted that
an amount of between R 550 000 to R 600 000.00 would be fair and just
but If the Court
wants to be generous, and amount of between R 850
000- R 900 000.00 would be reasonable. Reference was made to the
following decided
cases:
23.1.
Marsden v National Employers
General Insurance Company 1991(4) QOD 56 (W) 56 (W),
Where an adult female was awarded an
amount of R 586 000.00 in today's terms. She sustained severe head
injury with damage to left
frontal lobe.
23.2.
Ford v New Zealand Insurance Co
Ltd 1954 (1A) QAD 150 (E)
,
Plaintiff sustained a depressed
fracture of the skull over right ear and cerebral contusion, causing
serious injury to the brain
Awarded R 610 000.00 in today's terms.
23.3.
Bopape v President Insurance
Company Ltd 1990(4) QOD 43 (W)
,
The Plaintiff was awarded R 489
000.00 in today's terms. He sustained severe brain injury resulting
in severe neurological deficits.
23.4.
Pretorius v Mutual and Federal
Insurance Company Ltd 84-1
Court
awarded R 242 000.00 for head injury consisting of severe cerebral
contusion resulting in significant brain damage.
24.5.
Sibanyoni v Mutual and Federal
Insurance Company Ltd 1995 (482) QOD 12 (SCA),
Court
awarded R 65 000.00 for head injury in today's terms.
[25]
Counsel for Plaintiff submitted that an
amount of R 1 600 000.00 was fair and just and referred me to the
following case law:
25.1.
Penane v Road Accident Fund Case
No: 06/7702 (unreported),
Counsel for Plaintiff submitted that
the correct approach is to view the injuries and sequelae separately
as held by the court in
Penane v Road Accident Fund referred to
above. Head injury was awarded R 450 000.00;
25.2.
Petersen (obo) J ST) v RAF 2012
(6) QOD 881
Court
awarded a 5 year old who sustained moderate brain injury with
permanent significant neuropsychological deficits with degloving
injuries and scarring R 750 000.00 current value, R 1 146 000.00;
25.3.
Dlamini v RAF 2012 (6) QOD 68
(GSJ),
Severe brain injury of a
37 year old with fractured mandibles. Court awarded R 850 000.00
current value being R 1 280.000.00;
25.4.
Zarrabi v
RAF
2006 5 QOD C 84-231 (T),
Court
awarded R 600 000.00 current value is R 1 714 000.00 for severe brain
injury with severe cognitive and psychological sequelae
an
orthopaedic injuries; and
25.5.
Minnie v Nhlapo v RAF August 2010
QOD (GSJ),
Trauma of the head
resulting in various cognitive deficits R 800 000.00 current value R
1 284 000.00
[26]
I had due regard to all cases referred
to above and I found the Dlamini and Zarrabi case referred to by
Counsel for the Plaintiff
to be useful but only to give guidance.
[27]
I find the injuries sustained by the
minor in casu, together with the sequelae thereof profound compared
to case law relied upon
by Counsel for the Defendant.
LEGAL PRINCIPLES.
[28]
It is trite law that in assessing
general damages with reference to awards made in previous cases, each
case must be adjudicated
upon on its own merits.
[29]
Nugent J held in
Minister
of Safety and Security 2006(6) 320 (SCA)
that:
"The assessment of general damages with
reference to awards made in previous cases is fraught with
difficulty. The facts of
a particular case need to be looked at as a
whole and few cases are directly comparable. They are a useful guide
to what other
courts have considered to be appropriate but they have
no other value than that."
[30]
In
Sandler
v Wholesale Coal Supplies Ltd
1941 AD at paragraph 199
It is stated that:
"In considering that question 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, 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 consideration and the figure arrived at (is)
necessarily ... uncertain,
depending upon the Judge's view of what is
fair in all the circumstances of the case."
[31]
In Safika v
Minister of Police (330/2/2012)(2018) ZAECMHC 37 (31/7/18)
Toni A.J stated:
"In assessing damages, reference to
prior awards is useful and to assist the Court in determining what
would be fair and reasonable
compensation in each case, the Court
considers the facts, the circumstances, of the case, the injuries
sustained by the Plaintiff,
including their nature, permanence,
severity, and impact on the Plaintiff's life. However each case must
be determined on its own
merits."
[32]
In
Pitt v Economic Insurance Co Ltd Holmes J 1957 (3)SA 284
(D)at 287E-F
stated that:
"the Court must take care to see that
its award is fair, to the Plaintiff but it must not pour largesse
from the horn of plenty
at the defendant's expense"
[33] The same view was
expressed in
De Jongh v Du Pisane N.O
2005 (5) SA 547
at
paragraph 60.
[34] In
Hulley v
Cox
Innes J held:
"We cannot allow our sympathy for the
Claimants in this very distressing case to influence our judgment."
[35]
It
is equally trite that no two cases are always similarity is difficult
to find a comparable matter that is on all fours in respect
of the
facts.
GENERAL DAMAGES.
[36]
I now turn to general damages. General
damages account for pain and suffering, disability, disfigurement and
loss of amenities of
life.
[37]
In casu, there is no doubt that the
minor child suffered fatal injuries as a result of the accident and
he will continue to suffer
pain in future.
[38]
The sequelae thereof are well documented
in the joint minutes of the Neurosurgeons and in the medico-legal
reports of various experts.
[39]
The minor was hospitalized for 27 days,
5 days in intensive care unit. The pain and suffering, discomfort,
disfigurement and loss
of amenities of life suffered by the minor
child is common cause between the parties.
[40]
It is reported by the Physiotherapist
that when the minor was discharged his Glasgow Coma Scale was 15/15
but he was still not capable
of talking.
[41]
It was unequivocally stated by the
Neurosurgeons and various medico-legal experts that the minor child
sustained traumatic brain
injury plus multiple skull fractures and an
injury to the eye further that the injuries sustained are of a
permanent nature.
[42]
I
also took into consideration that the minor child suffered the
following neuropsychological deficits:
42.1.
Poor abstract reasoning;
42.2.
Poor concentration;
42.3.
Inattentiveness;
42.4.
Poor self- monitoring;
42.5.
Personality alterations;
42.6.
Impulsiveness and
42.7.
Slowed cognitive processing amongst
others.
[43]
Neurobehavioral deficits:
43.1.
Bizarre behavior;
43.2.
Short temperedness;
43.3.
Moodiness;
43.4.
Forgetfulness;
43.5.
Irritability and
43.6.
Poor social skills.
[44]
Neurocognitive deficits:
44.1.
Intellectual impairment
44.2.
Deterioration in cognitive functions.
[45]
Dr Lankerster, the Neurosurgeon stated
on page 16 of his report date 17/01/2014 that:
"The head injury he sustained was
a
severe head injury and as it is now,
5
years
after the injury, it is unlikely that he will experience any
significant improvement in his ability to cope at school."
[46]
It cannot be disputed that the minor
suffered endured a great deal of pain and suffering. He suffers from
a regular pain from headaches
and dizzy spells as recorded by the
Clinical Psychologist.
[47]
At the time the minor child was
hospitalized, he was temporarily disabled; his movement and enjoyment
of amenities of life were
curtailed.
[48]
The Clinical Psychologist has reported
on page 22 of her report that:
"From
a
psycho-social perspective,
indications are that T has been compromised
as
he can no longer play physical
sport." The accident has resulted in permanent emotional and
social sequelae in terms of
T's
functioning"
ASSESSMENT
OF GENERAL DAMAGES.
[49]
In
assessing general damages I considered the following:
49.1.
The age of the minor child pre and post
the accident;
49.2.
The circumstances of the case;
49.3.
Injuries sustained including permanent
nature thereof;
49.4.
The sequelae thereof including the
emotional, social and physical sequelae and
49.5.
Previous comparable awards.
[50]
In
addition to case law referred to by the Counsel for the parties, I
took cognizance the following cases:
50.1.
Megalane N.O v Road Accident Fund
(
2007
3 ALL SA 531
(W),
wherein
the court awarded an amount of R 1000.00 for general damages in 2015
in respect of an 11 year old boy . The court held that
the loss of
amenities was profound.
50.2.
Dlamini v Road Accident Fund
ZAGPPHC 646 ( 2015)
50.3.
Matthys v Road Accident Fund 2013
(6a4) QOD273 (GNP)
50.4.
Lebesa Mamohlomi obo T ZAGPPHC
1170 (10 August 2017)
50.5.
M v Road Accidend Fund ZAGPJHC 438
( 18 June 2018)
50.6.
Road Accident Fund v Marunga
(144/2002) (20031 ZASCA 19: (20031
2 All SA 148
{SCA) (26 March 2003)
[51]
Having considered all that I mentioned
herein, it is my considered view that a fair and just amount for
compensation in respect
of general damages is R 1 7000.00 ( One
million seven hundred thousand rand)
ORDER.
[52]
I now make the following order:
1.
The defendant is held liable for 100%
for damages suffered by the minor child as a consequence of the motor
vehicle collision;
2.
The defendant is ordered to furnish the
Plaintiff with an undertaking as contemplated by s17(4)(a) of The
Road Accident Fund;
3.
In addition, the undertaking shall
include the costs of the creation of the trust referred to in
paragraph 8.1 below, the costs
of annually obtaining a security of
bond as required and the costs of a trustee in respect of the
administration of a trust, limited
to the costs recoverable by a
Curator bonis in accordance with the statutory tariffs published from
time to time;
4.
The Plaintiffs Attorney of record shall
retain the aforesaid amount in terms of section 86
Legal Practice Act
28 of 2014
for the benefit of the Plaintiff's minor child, pending
the creation of the trust and the issuing of the letter of authority.
From
the said amount, an amount of R 100 000.00 (one hundred thousand
rand) shall be paid to the Plaintiff, not to the trust;
5.
The defendant shall pay R 1 7000.00 as
general damages for pain and suffering, disfigurement, disability,
discomfort and loss of
amenities of life;
6.
The defendant shall pay the Plaintiff a
sum of in respect of I R 1 285 902.00 (one million two hundred and
eighty five thousand
nine hundred and two rand) in respect of loss of
earnings capacity;
7.
The total amount payable to the
plaintiff by the defendant is R 2 985 902.00 (Two million nine
hundred and eighty five thousand
nine hundred and two rand);
8.
The Plaintiffs Attorney of record shall
pay the amount set out in 7 above, less the amount referred to in
paragraph 4 above, together
with any accrued interest, over to the
trustee of a trust. In respect of which trust the following shall
apply;
8.1
Trust shall be created in accordance
with the trust deed.
8.2
The Trustee shall:
8.2.1
be obliged to render security to the
satisfaction of the Master of the High Court;
8.2.2
be entitled to administer on behalf of
the patient, the undertaking referred to in paragraph 2 above and to
recover the costs covered
by such undertaking on behalf of the trust
for the benefit of the Plaintiff; and
8.2.3
At all times administer the trust to the
sole benefit of the patient.
9.
The Deed shall not be capable of being
amended without the leave of court;
10.
The trust shall terminate upon T M
attaining the age of 21 and the remaining net shall be distributed to
him upon such date;
11.
The Defendant shall pay the High courts
of the Plaintiff, including:-
11.1
The costs of attendance upon the
obtaining of payment of the full capital amount referred to in
paragraph 7 above and;
11.2
The preparation, qualifying and
reservation fees of experts, including costa of obtaining experts
reports in respect of the Plaintiff
and the costs consequent upon the
preparation of joint minutes; and
11.3
The Plaintiff's travel and accommodation
costs to attend the Defendant's and own experts;
11.4
Costs of all Plaintiff's experts report,
addendum reports and joint minutes and;
11.5
The costs of Junior- Senior Counsel's
appearance;
11.6
Any and all previously reserved costs,
which are declared costs in the cause and
11.7
The Plaintiff and subpoenaed witnesses
are declared necessary witnesses.
12.
The
Plaintiff shall in the event that costs are not agreed, serve the
notice of taxation on the Defendant's Attorney of record;
13.
The
Plaintiff shall allow the Defendant 14 days to make payment of the
taxed costs;
14.
Payment
referred to in paragraph 7 above, shall be made directly into the
Plaintiff's Attorney's trust account within 14 days and
15.
The
draft order marked "X" is hereby made an Order of the
Court.
T.E MAFAFO (MS)
ACTING JUDGE OF THE HIGH COURT, PRETORIA
Representations:-
Counsel
for the Plaintiff :
Adv. Leballo
Instructed
by:
Badi Loliwe Attorneys
Counsel
for the Defendant :
Adv. T.M Malatjie
Instructed
by:
Maponya Incorporated
Hearing
Date :
05 April 2019
Judgment
Date :
12 April 2019
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION , PRETORIA)
BEFORE
THE HONOURABLE MADAM JUSTICE MAFAFO , AJ
12
th
APRIL 2019
CASE
NO . 53151/16
In
the matter between:
MAKAE
THABO obo T MAKAE
PLAINTIFF
-and-
ROAD
ACCIDENT FUND
DEFENDANT
DRAFT
ORDER
HAVING
HEARD COUNSEL FOR THE PARTIES,
the
following order is made :
1.
Defendant
shall pay Plaintiff the amount of
R
2 985 902. 00
(TWO MILLION
NINE HUNDRED & EIGHTY FIVE THOUSAND NINE HUNDRED AND TWO RANDS) )
which amount shall be paid on or before 14 days
from date of this
order to the Plaintiff's
BADI LOLIWE
ATTORNEYS ,
in settlement of the
Plaintiff's claim , by direct transfer into their trust account , the
details of which are as follows:
BADI
LOLIWE ATTORNEYS
Bank:
FIRST NATIONAL BANK
Branch
code: 250-130
Account no: [….]
TYPE: TRUST CHEQUE
2.
The
Defendant is not liable for interest on the aforesaid payment if
timeously made; ; Plaintiff will be entitled to recover 10,25%
3.
The
net proceeds of the payment referred to in paragraph 1 above shall,
after deduction of the Plaintiff's attorney's legal fees,
be payable
to a Trust in favour of
THASELLO
MAKAE,
to be established within 6
(SIX) months of the date of this order, which Trust will :
3.1
Be
created on the basis of the provisions as more fully set out in the
Draft Trust Deed attached hereto marked Annexure
"
A";
3.2
Have as its main objective the control,
management and administration of the capital amount on behalf and for
the benefit of
THASELLO MAKAE
3.3
Have, as its Trustee ,
MAHALIA
MOLEFE
of Absa Trust Ltd, with
powers and abilities as set out in the Draft Trust Deed and as
furthermore confirmed in the letter by ABSA
dated
12
APRIL 2019
and attached hereto
marked annexure
"8 ".
3.4
Should the aforementioned Trust not be
established within the aforementioned 6 (SIX) month period, the
Plaintiff is directed to
approach this Court within 1 (ONE) month
thereafter in order to obtain further directives in respect of the
manner in which the
capital amount is to be utilized in favour of the
injured;
3.5
Until such time as the Trustee is able
to take control of the capital sum and to deal with same in terms of
the Trust Deed, the
Plaintiff's attorneys are authorized and ordered
to:
3.5.1
Invest the capital amount in an interest
bearing account in terms of Section 86(4) of the Legal Practice Ac t,
2014 to the benefit
of the minor, with a registered banking
institution pending finalisation of the directives referred to in
paragraph 3.4 above;
3.5.2
Make any reasonable payments to satisfy
any of the needs of the injured that may arise in the interim and
that may relate to the
reasonable need for treatment, care, aids or
equipment;
4.
The
Defendant shall furnish Plaintiff with an Undertaking in terms of
section 17(4)(a) of the Road Accident Fund Act in respect
of the
following:
4.1
For the costs of the future
accommodation of
THASELLO MAKAE
in
a hospital or nursing home or treatment of or rendering of a service
to him or sup p lying of goods to him arising out of the
injuries
sustained by him in the motor vehicle collision which occurred on
03
rd
NOVEMBER 2009,
after such costs
have been incurred and upon proof thereof;
4.2
For establishing and administering the
Trust referred to in paragraph 3 above, up to the maximum prescribed
in terms of the Trust
Property Control Act 57 of 1988;
5.
The Defendant shall pay Plaintiff's
taxed or agreed costs on the High Court scale as between party and
party, for the 4th March
and 5th April 2019 which costs shall include
, but not be limited to:
5.1
The costs of obtaining the all the
reports, including addendum reports and joint minutes, if any, of
experts
5.2
The reasonable taxable reservation
and/or preparation fees, if any, of the experts referred to in
paragraph 5.1 above;
5.3
The costs incurred in transporting
Plaintiff to and from the above mentioned medico legal appointments;
5.4
The costs of making bundles for trial;
5.5
Costs of Counsel for the 4th March and
5
TH
FEBRUARY 2019
6
In the event that the amount in respect of costs is not agreed upon,
then:
6.2
The Plaintiff shall serve the notice of
taxation on the Defendant's attorney of record, and ;
6.3
The Plaintiff shall allow the Defendant
14 (Fourteen) court days to make payment of the taxed costs.
7.
There is no contigency fee agreement applicable
BY
THE COURT
REGISTRAR
For the
Plaintiff: Adv LT Leballo: 0795886629
For the
Defendant: Adv T Malatje : 0828411304