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[2019] ZAFSHC 7
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W V v Road Accident Fund (4992/2014) [2019] ZAFSHC 7 (1 February 2019)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
4992/2014
In
the matter between:-
W
V
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
CORAM
:
MBHELE, J
HEARD
ON
:
29 OCTOBER 2018
DELIVERED
ON
: 01 FEBRUARY 2019
[1]
On 25 February 2011 on the Second Avenue in Bloemfontein the
plaintiff was struck by an unknown grey motor vehicle driven by
an
unknown person while he was crossing Second Avenue to between Kellner
and Zastron Streets as a pedestrian (the collision).
As a
result of the accident the plaintiff suffered severe bodily injuries
which resulted in more than 30% impairment of his whole
person.
[2]
Plaintiff issued summons against the defendant under case number
4992/2014 for damages suffered as a result of the collision
on the
basis that the collision was caused by the sole negligence of the
driver of the vehicle that fled the scene of accident
and who was
insured by the defendant.
[3]
Mathebula, J made an order that the defendant is liable for 100% of
the Plaintiff’s agreed or proven damages. The defendant
made an
undertaking in terms of section 17 (4) (a) for the plaintiff’s
future medical costs. The matter serves before me
for determination
of Plaintiff’s general damages, future loss of earnings and
past medical costs.
[4]
The defendant admitted the following reports of the plaintiff’s
experts:
Dr. B Janecke (Clinical
Psychologist)
Frans Kleinhans
Dr. L.F. Oelofse
(Orthopaedic Surgeon)
Susan Van Jaarsveld
(Industrial Psychologist)
Juane Raats (Occupational
therapist)
Dr. I Martinus
(Specialist Neurologist)
Dr. K Botha
(Psychiatrist)
[5]
The plaintiff’s injuries were described as follows by Dr.
Oelofse, an orthopaedic sur
geon:
·
Traumatic brain injury with:
-
Base of skull fracture
-
Pons bleed
·
Mandible fracture
·
Right lower leg – tib / fib
fracture
He
was in a coma and transferred to ICU ventilated on a T- piece, still
and with a GCS of 4/ 15.
A
tracheostomy was done; the plaintiff was non responsive and received
physiotherapy passive exercise.  He was in a coma for
1 month.
He went to theatre for an open reduction and internal fixation of his
right tib/fib fracture on 2
nd
March 2011 and 29 March 2011. He developed Hospital Acquired
Pneumonia and developed infection on his right lower leg which
required
daily dressing.
[6]
He was transferred to Yade after care centre
and spent another 3 months receiving physiotherapy and occupational
therapy on a daily
basis. During his stay at Yade he was still unable
to eat properly, he only tolerated soft foods. He was unable to speak
due to
his fractured mandible.
[7]
He continued to receive physiotherapy and occupational therapy at
National Hospital as an outpatient. He uses a cain to walk,
he can
read but is unable to write. He is is still taking medication for his
brain injuries.
[8]
The internal fixation on his right lower leg was removed due to
excessive pain and discomfort.
Current
Symptoms
Head:
The
plaintiff complains of headaches.
He
has behavioural and emotional disorders:
·
Aggressive
·
Forgetful
·
Depressed
·
Isolates himself
·
Foul language
[9]
He complains of his right eye having double
vision, his jaws hurt when he chews, he struggles with soft food as
well;
The
Tracheostomy has affected his swallowing, speech, voice and laughter.
His hands shake when he has to hold a fork a knife or
spoon.
[10]
He complains of pain and discomfort in the right knee joint and lower
right leg. He walks with a painful gait; he cannot walk
unaided and
uses a walking stick. He is unable to squat or go down on his
haunches. He cannot stand or walk long distances.
[11]
Further examination revealed that:
He
has definitive speech defect;
He
gets agitated easily;
He
reponds to some verbal commands but forgets and has to be reminded
constantly
He
struggles to read and complains that sentences given to him are
blurry;
His
vocal notes change when he speaks or laughs;
His
hands shake uncontrollably.
He
has brain stem injury, right eye injury, mandible injury, trachea
injury as well as right knee/ lower leg injury.
[12]
The plaintiff is permanently disabled due to his brain stem injury.
He will never be able to work again. He cannot live on
his own and
has to be supervised 24 hours.
[13]
SUSAN VAN JAARSVELD (INDUSTRIAL PSYCHOLOGIST)
13.1
A report by Susan Van Jaarsveld, an Industrial Psychologist, made an
assumption that the plaintiff would have been employed
as a diesel
mechanic until the age of 65.  She opines further that he
plaintiff is not in a position to perform any remunerative
work and
will not be able to compete in the open labour market. She is of the
view that the plaintiff would have progressed to
the level of a
foreman at the age of 40. This is based on the information  that
the plaintiff was employed as an apprentice
before the accident and
was due to qualify in two months and further that diesel mechanic is
a scarce skill and those at the entry
level normally see promotion at
the age of 35.
[14]
JUANè RAATS (OCCUPATIONAL THERAPIST)
14.1
She evaluated the plaintiff on 8 June 2012 and 21 June 2012.
14.2
She is of the opinion that the plaintiff can never compete in the
open labour market.  He is unable to do even the simplest
things
on his own. He is a danger unto himself, he cannot be left alone. He
does not turn stoves and heaters off once they are
turned on. He does
not eat nor bath unless he is told to do so.  He can no longer
play guitar or sketch anymore. He gets aggressive,
easily irritated
and break household items when frustrated.
14.3
She observed that the plaintiff had an irregular gait. He is
childish, likes instant gratification and does not think about
the
future.
14.4
Plaintiff has poor coordination owing to his brain stem injury and
weakened muscle strength. His hand is not properly functioning.
He
struggles with dexterity and coordinated functioning of the hand.
He is unable to hold a pencil and writes with a static
arm.
14.5
His vision is blurry and hazy, he complains of double vision due to
brainstem injury.
14.6
The plaintiff is unable to manage his own affairs.  He will not
be able to live nor work independently and make sound
decisions for
his life.
[15]
15.1
Dr I Martinus (Specialist Neurologist
) examined the
plaintiff on the 22
nd
February 2017 and made the following
findings:
15.2
The plaintiff displays emotional and behavioural changes; his memory
and concentration are impaired; he struggles to find words;
his
shaking right hand makes it difficult for him to eat. He chokes often
when he eats. Although he is right handed he now uses
his left hand.
He complains of muscle stiffness in his lower limb and cannot walk
unassisted.
15.3
He concluded that the plaintiff has sustained serious neurological
deficits and that his sequelae are permanent due to the
brain
injury.  The sequelae include damage to the right sided
pyramidal motor tract in the basis pontis part of the brainstem.
He
is at a high risk of developing epilepsy in future.
[16]
16.1
Dr Botha (Psychiatrist)
interviewed the plaintiff on 15
June 2007 and remarked as follows:
Current
complaints: Since the accident, the plaintiff has impaired motor
control. He walks with difficulty and has a spastic gait.
His right
hand has involuntary movement and his left hand still has spasticity.
He has a grossly impaired memory. He cannot take
care of himself. He
forgets to eat; he cannot tell when it is cold. He would walk outside
barefooted with summer clothes in the
middle of winter.
16.2
His long and short term memory is grossly impaired.  The
contents of his thoughts were childlike during examination and
his
range of thinking is impaired. His range of emotions is impaired; he
does not express appropriate joy or sadness. His extreme
emotional
blunting is consistent with extensive brain injuries.
16.3
The plaintiff has significant mental and functional impairment. He is
permanently unable to work or take care of himself or
his affairs.
[17]
17.1 The clinical psychologist Ben Janecke   examined the
plaintiff on 27 June 2017.  He testified that the

neuropsychological testing he conducted showed that the plaintiff is
functioning below the level expected for someone at his age.
17.2
He subjected him to a test which revealed the following:
That plaintiff is not fully orientated for time and place;
poor
auditory and visual attention; a severe degree of motor and mental
slowing; poor perceptual motor and constructional functioning;
poor
complex attention; impaired verbal fluency; impaired
conceptualization, motor programming, shifting from one response
pattern
to another, frontal lobe inhibition and control as well as
poor sustained and divided attention; poor incidental visual memory;

difficulty with verbal learning, especially on an unstructured task;
poor verbal memory and poor logical memory.
17.3
Questionnaires the plaintiff and his mother completed indicated the
following problems amongst others: Severe depression; major

difficulties with impulsivity, emotional difficulties,
underachievement, disorganisation and learning problems; moderate to
severe
difficulties with inattention, underactivity, non-compliance
and peer relations; a mild to moderate impairment with self-care and

getting around; a moderate to severe impairment with understanding
and communicating and participating in society; a severe problem

getting along with people and with life activities in the household;
extreme problems with life activities at work. These difficulties
are
in his view consistent with the nature and severity of the brain
injury as described in other reports.
17.4
The psychometric evaluation confirms a severe traumatic brain injury.
The plaintiff’s neuropsychological difficulties
can be regarded
as permanent and no further major improvement is likely to occur. He
opines that the fact that he had a sudden
problem in his right hand
and had to switch dominance of his hands is indicative of a further
bleeding in the area of the brainstem
and cerebellum.
[18]
18.1  Santie van Biljon, the plaintiff’s mother gave a
brief overview of the plaintiff’s work history. She
testified
to,
inter alia
,  the effect that the plaintiff
matriculated in 2002, in 2003 he helped his stepdad who is an
electrician, 2004/2005 he spent
18 months in England where he worked
as a security guard and for ER24; in 2006 he worked  at
Phalaborwa for census and also
worked as a barman for a year, in 2007
he worked as a storeman for a company called Texa; in February 2008
he started doing apprenticeship
for diesel mechanic at a company
called Bloemfontein International until the day of his accident.
According to her, he would have
qualified around April 2011 as a
diesel mechanic.
18.2
Before the accident the plaintiff played classical guitar and drums
at church, he also loved to do drawing, especially sketches.
He was
in the ICU at Pelonomi hospital. He was in a coma for a month and he
was detained for 3 months at the hospital on tube feeding.

After the accident he could not speak; it took him about six months
to start speaking and when he regained his speech he could
only speak
English which is not his home language. It took him about two years
to speak to the level he is currently speaking.
18.3
Shortly after the accident the plaintiff’s left arm was
completely spastic. He received intensive physiotherapy everyday

which was very painful and he cried during the process.
18.4
Six months later his hand started to shake uncontrollably and he lost
the use of his right arm. His fingers don’t work.
He can only
write with his left arm and his writing is untidy and illegible.
He writes like a child.
18.5
He has a fractured right leg. For a year he experienced pain with
physiotherapy and the wound on his leg became septic.
After a
year the doctors established that there was an arrest in the fracture
repair process.  He then had an operation where
the internal
fixations were removed. She explained, further, that the plaintiff
walks in open gait cannot maintain proper balance.
She also mentioned
that it has happened in public (at a mall) that people would think
that he was drunk.
18.6
After the plaintiff was discharged from ICU into a normal ward they
inserted a trachea. She was informed that he would never
be able to
function and eat properly again. The doctors were not willing to
operate on his jaw until one doctor said he would take
a chance and
operated his jaw. Upon his discharge from hospital she sent him to
Yade (a place taking care of the elderly) where
he spent six months
immobile. She had to buy diapers every day.  He would become
aggressive when being teased by old people
at the centre about his
condition.
18.7
The plaintiff does not have any friends anymore. Before the accident
he was very social. He is very lonely now. He becomes
disoriented in
a territory he is not familiar with. She has to maintain a certain
routine for him to understand what is happening
around him. He does
not brush his teeth, bathe nor change his clothes unless he is
reminded to do so.  He behaves like a primary
school kid. His
priorities are skewed.
18.8
He is receiving physiotherapy at Therapy Centre, Westdene,
Bloemfontein, since June 2015 on a weekly basis at a cost of R300
per
session. The plaintiff would on average miss two sessions per year
due to illness. It is safe to calculate the amount at 50
sessions per
annum. From June 2015 until September 2018 the amount spent towards
plaintiff’s physiotherapy is estimated at
R48 750.00.
[19]
19.1 Lenus Ackerman, a workshop manager at Bloemfontein international
and plaintiff’s former supervisor, testified to
the effect that
he has known the plaintiff as his son’s friend since the time
he was in Grade 8. He invited the plaintiff
to do his apprenticeship
as a diesel mechanic. He started working at his firm in the
aforementioned capacity in February 2008.
19.2
The plaintiff performed well as a diesel mechanic and his progress
was more than satisfactory and he had no doubt that
the plaintiff
would pass his tests.  The plaintiff had completed the 3 years
apprenticeship and he would have qualified as
a diesel mechanic
between April and June 2011.
19.3
As a diesel mechanic the plaintiff would have earned approximately
R16 000-00 per month without taking overtime
in consideration.
As they worked with heavy duty vehicles, they had to work overtime on
a regular basis. Plaintiff would have been
able to earn approximately
R3 500-00 to R 6 000-00 per month on overtime and stand by fees.
Apprentices in the mines earn
about R30 000- R35 000 per month.
Diesel mechanics are scarce and in high demand, he would have held on
to the plaintiff
because he was a hard worker.
[20]
LOSS OF EARNINGS/EARNING CAPACITY:
20.1 Charl du Plessis, an
Actuary, estimated the capital value of the plaintiff’s loss of
income, including RAF cap after
contingencies as follows:
Past

R 1 310 500
Future

R 4 920 200
Total

R 6 230 700
20.2 Cap as prescribed by
the RAF Amendment Act on projected losses was applied on the above
totals.  In his view, application
of cap reduced the plaintiff’s
claim by 11, 3%. The contingencies were deducted before the cap and
as set out in
Sil
v RAF
2013 (3) SA 402
(GSJ) and Sweatman
v RAF
2015 (2) All SA 679
SCA
.
20.3 His calculations
calculations were based on the assumption that the plaintiff would
have qualified as a diesel mechanic during
April 2011. During
cross-examination, he was asked what the impact would be if the
plaintiff only qualified towards the latter
part of 2011 (September
2011 to December 2011) and his salary only improving then.  He
made his calculations and explained
that the Plaintiff would have
received a reduced salary of
R10 000
per month between April
2011 and the date of his qualification. If he qualified in September
the reduced amount would be R 50 000
and R80 00 if he qualified in
December.
Lennies
Ackerman stated that ordinarily it takes about three months for
apprentices to qualify as diesel mechanics from the date
of
examination. He initially estimated that he would have qualified
around June and in the worst case scenario within six months.
In the
circumstances it is fair to estimate the plaintiff’s date of
qualification as September 2011. Therefore R 60 000 is
the reasonable
and fair amount to deduct from actuarial calculations.
[21]
DEFENDANT
Defendant
closed its case without leading evidence.
[22]
CONTENTIONS BY THE PARTIES
Parties
are in agreement that the Plaintiff suffered severe injuries and that
he may never be able to work again. Mr Steenkamp,
on behalf of the
plaintiff, submitted that the plaintiff’s life has been
tremendously destroyed by the collision. He is now
entirely dependent
on other people when he once tasted what it feels like to live an
independent and active life. He contended,
further, that the
plaintiff should be compensated for general damages in the amount of
R 2 500 000, R6 230 700 for loss of earnings
and R48 750 00 for past
medical expense.
[23]
DEFENDANT’S CONTENTIONS
Mr.
Sanders, on behalf of the defendant, submitted that the plaintiffs in
cases referred to by the Plaintiff in support for
his case are
not comparable to the plaintiff’s case. His view is that the
sequelae of the parties in the relevant cases were
more serious than
the Plaintiff’s. He contended, further, that the appropriate
amount for plaintiff’s general damages
is R600 000.
[24]
APPLICABLE LEGAL PRINCIPLES
A
trial court has a wide discretion to award what it considers to be
fair and adequate compensation in an action for damages based
on loss
of income which cannot be assessed with any degree of mathematical
accuracy.  (See
AA Mutual Insurance
Association v Maqula
1978 (1) SA 805
(A)
at
806).
[25]
The defendant must
make good the difference between the value of the plaintiff's estate
after the commission of the delict and the
value it would have had if
the delict had not been committed. The capacity to earn money is
considered to be part of a person's
estate and the loss or impairment
of that capacity
(See
Dippenaar v Shield Insurance Co Ltd
1979 (2) SA 904
(A)
and
Santam Versekeringsmaatskappy Beperk
v Byleveldt
1973 (2) SA 146
(A).
[26]
The above principle was echoed in
Prinsloo
v Road Accident Fund
2009 (5) SA 406
(SE) where the following was said:
“
A
person's all-round capacity to earn money consists, inter alia, of an
individual's talents, skill, including his/her present position
and
plans for the future, and, of course, external factors over
which a person has no control, for instance, in casu, considerations

of equity. A court has to construct and compare two hypothetical
models of the plaintiff's earnings after the date on which he/she

sustained the injury. In casu, the court must calculate, on the one
hand, the total present monetary value of all that the
plaintiff
would have been capable of bringing into her patrimony had she not
been injured, and, on the other, the total present
monetary value of
all that the plaintiff would be able to bring into her patrimony
whilst handicapped by her injury. When the two
hypothetical totals
have been compared, the shortfall in value (if any) is the extent of
the patrimonial loss. … At the
same time the evidence may
establish that an injury may in fact have no appreciable effect on
earning capacity, in which event
the damage under this head would be
nil.
”
[27]
When dealing with general damages it must be taken into consideration
that the pain, suffering, loss of amenities of life suffered
by a
victim cannot be measured and calculated in monetary terms. The
amount to be awarded as compensation can only be determined
by the
broadest general terms. (See
Sandler v
Wholesale Coal Supplies Ltd
1941 AD 194).
[28]
Plaintiff submitted psycho-legal,
neurological, orthopedic, occupational and actuarial reports
detailing the extent of the plaintiff’s
patrimonial loss and
damages. The basis upon which the calculations were made was accepted
by the defendant. All evidence shows
that the plaintiff’s life
has been permanently interrupted. He will never be able to recover
and do the things he used to
do before the collision. The brain
damage makes it difficult for him to even understand his
surroundings. He will never participate
in the open labour market
again.
[29]
It is not in dispute that the plaintiff has lost his capacity to earn
as a result of the collision. The undisputed evidence
shows that the
plaintiff was healthy and active before the collision and that he
would have worked as a diesel mechanic until age
65.
[30]
The undisputed evidence shows that the Plaintiff was a motivated and
hardworking employee. His employer was certain that due
to his
attitude and hard work he would have passed his tests to become a
qualified diesel mechanic at first attempt.
[31]
Actuarial calculations estimated the Plaintiff’s loss of income
as follows including RAF cap and after contingencies:
Past

R 1 310 500
Future

R 4 920 200
Total

R 6 230 700
[32]
In determining quantum for damages I am called upon to exercise a
broad discretion to award what I consider fair and adequate

compensation. I have considered the extent of plaintiff’s
injuries and how his life has been affected by the said injuries.
His
injuries were severe and have completely destroyed his life.
[33]
I have also considered the cases I was referred to by Messrs.
Steenkamp and Sanders. I have noted that most of them are
distinguishable
from the current matter in that the nature of the
injuries and their impact on the respective victims differ from the
current matter.
The sequelae in the cases referred to were
either more serious or less serious than the current matter.
Mr.
Steenkamp compared the plaintiff’s condition to that of the
plaintiff in
Delport N.O. v Road Accident Fund QOD Vol V on A4-1
and that of
Megalane N.O. v Road Accident Fund QOD Vol V on
A4-10.
In
Delport
, a 36-year old mother of two children suffered a
severe brainstem injury leaving her without use of any limbs except
for very limited
use of left arm and hand, and with complete
inability to speak or to move.  She experienced destruction of
all social, business,
sporting and recreational activities, including
a happy marriage.
In
Megalane
an 11 year old boy year old boy suffered a
severe brain injury resulting in cognitive impairment characterised
by poor verbal
and visual memory, poor concentration and
distractibility, inappropriate behaviour, speech difficulties
characterised by dysathria
and word retrieval difficulties; severe
spasticity of all four limbs and left facial paralysis as well as
aphasis. He was confined
to a wheelchair.
[34]
In the case of
Sigournay v. G
illbanks,
1960
(2) SA 552
(AD)
at p
.
556
, the following was said:
"Nothing
like a hard and fast rule or definite standard is to be found in a
matter so closely linked with the particular circumstances
of each
case, but some guidance is to be derived from the notion that
fairness to both parties is likely to be served by a large
measure of
continuity in size of awards, where the circumstances are broadly
similar. As was said by INNES, C.J., in
Hulley
v.
Cox
,
1923 AD 234
at p. 246, a comparison with other cases though never
decisive is instructive. I respectfully agree in this connection with
the
statement of ORMEROD, L.J., in
Scott
v.
Musial
,
(1959) 3 W.L.R. 437
at p. 446, that there emerges 'a general idea of
the sort of figure which, by experience, is regarded as reasonable in
the circumstances
of a particular case' to which general idea a
Court of appeal should give regard."
It
is so that past awards only serve as a guidance to assist the court
not to come to an award that is not in harmony with past
awards in
matters of similar nature. None of the cases I was referred to fit
squarely into the circumstances of the current matter.
The
evidence shows that plaintiff is permanently disabled with
significant mental and physical impairment. He will need constant

supervision and nursing services. His career, social and family life
is completely destroyed. The neurologist is of the opinion
that he is
at a high risk of developing epilepsy in future.
In
view of the severity of plaintiff’s injuries, prolonged severe
pain and suffering, I am of the view that an appropriate,
fair and
reasonable amount for general damages is R 2 100 000.00.
Past medical expenses
R 48 750-00
Loss of earning
capacity
R 6 170 700
General
damages
R 2 100 000.00
[35]
ORDER:
I
grant the judgment in favour of the Plaintiff as follows:
1. Defendant is to pay
the plaintiff the sum of R8 319 450-00 (Eight million three
hundred and nineteen  thousand
four hundred and fifty rands)
which amount is compiled as follows:
1.1
the sum of R2 100 000-00 (Two point 1 million rands.) in
respect of general damages;
1.2
The sum of R6 170 700-00 (Six million one hundred and
seventy  thousand seven hundred rands) in respect of loss
of
income;
1.3
The sum of R48 750-00 (Forty eight thousand seven hundred and
fifty rands) in respect of past medical expenses
Into
the following bank account;
Bezuidenhouts inc
BRANDWAG
BRANCH CODE 334 334
Account no. […]
2. Interest on the
aforesaid amounts calculated at the prescribed rate of interest from
date of judgment to date of payment.
3. The defendant is
ordered to furnish the plaintiff with an undertaking in terms of
s
17(4)(a)
of the
Road Accident Fund Act, 1996
, for payment of 100% of
the costs of the future accommodation of the plaintiff in a hospital
or nursing home, or treatment of or
rendering of a service or supply
of goods to him, arising out of the injuries that he sustained in the
motor vehicle collision
which occurred on 25 February 2011 and the
sequelae
thereof, after such costs have been incurred and upon
proof thereof, which undertaking will include payment of:
3.1
The reasonable costs for the creation of a trust to administer the
funds awarded to the plaintiff and the appointment of the
trustees
3.2
The reasonable fees/remuneration of the trustees and costs incurred
by the trustees in administering the trust
3.3
The reasonable costs incurred by the trustees in providing security
to the Master.
3.4
The fees of the trustees shall be limited to those allowed to a
curator
bonis
in terms of the
Administration of Estates Act 66
of 1965
.
4. The defendant shall
pay the plaintiff’s taxed or agreed party and part costs on a
High Court scale to date of this order,
which shall include:
4.1
The reasonable qualifying, preparation, reservation and appearance
fees (where applicable) of the following experts and those
experts
that were in the opinion of the taxing master necessary for proving
the plaintiff’s case:
(a) Dr LF Oelofse;
(b) Susan van Jaarsveld;
(c) Juané Raats;
(d) Charl du Plessis;
(e) Dr I Martinus;
(f) Dr K Botha;
(g) B Janecke;
4.2
Counsels fees;
5 In the event that costs
are not agreed:
5.1
The plaintiff shall serve a notice of taxation on the defendant’s
attorney of record; and
5.2
The plaintiff shall allow the defendant fourteen (14) days to make
payment of the taxed costs.
_____________
NM
MBHELE, J
On
behalf of the plaintiff: Mr. MDJ Steenkamp
Instructed
by: BEZUIDENHOUTS INC.
BLOEMFONTEIN
On
behalf of the defendant: Adv. Sanders
Instructed
by: MADUBA ATTORNEYS
BLOEMFONTEIN