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[2019] ZAFSHC 5
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M M v Road Accident Fund (4119/2015) [2019] ZAFSHC 5 (4 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case No: 4119/2015
In the matter between:
M
M Plaintiff
and
THE
ROAD ACCIDENT
FUND Defendant
CORAM
:
OPPERMAN,
J
HEARD
ON
:
13
FEBRUARY 2019
DELIVERED
ON
:
4
MARCH 2019
JUDGMENT
BY
:
OPPERMAN,
J
Summary:
Claim
for damages – motor vehicle accident – general damages
JUDGEMENT
I
BACKGROUND
[1]
On 27 October 2013 on the N5 Road between Bethlehem and Kestell,
traveling towards Kestell, the plaintiff was the driver of
a motor
vehicle that had to swerve to avoid a collision with an unidentified
motor vehicle (the insured driver). The insured driver
overtook
another vehicle and entered the plaintiff`s lane of travel. In an
attempt to avoid a collision, the plaintiff lost control
of her
vehicle and it overturned.
II
COMMON CAUSE
[2]
On 18 October 2016 Moloi, J ordered that the merits and the quantum
of the matter be separated in terms of Rule 33(4), t
he
defendant is liable for 100% (
One
Hundred
Percentum)
of the plaintiff’s proven or agreed damages pertaining to the
injuries sustained.
[3]
The quantum was postponed. The matter was placed for trial for three
days.
[4]
Consultations between the parties on the first day of trial
eventuated in a settlement that entails that:
4.1
The
defendant shall make payment to the plaintiff of compensation for
loss of income in the amount of R919 854.80.
4.2 Payment by the
defendant is to be made within fourteen (14) days from date of this
order, failing which interest will start
to accrue from date of this
order at a rate of 10,25% per annum until date of payment.
4.3 The defendant shall
furnish the plaintiff, with an Undertaking in terms of Section 17(4)
(a) of the Road Accident Fund Act,
Act No 56 of 1996 for 100% of the
plaintiff’s future accommodation in a hospital or nursing home,
or treatment or rendering
of a service, or supplying of goods or
related expenses in respect of injuries sustained by the plaintiff in
the motor vehicle
collision which occurred on the 27 October 2013.
4.4 The defendant pays
the plaintiff’s taxed or agreed party and party costs and
correspondent’s fees on the High Court
Scale which costs
inter
alia
will include the following:
4.5.1
The Costs of Senior-Junior Counsel for the 12
th
and 13
th
of February 2019;
4.5.2
All costs in obtaining all medico-legal-reports, joint minutes and an
actuarial report as well as the plaintiff’s travelling
and
lodging costs in attending the plaintiff’s and defendant’s
expert medical appointments as well as the trial.
4.5 The defendant is also
liable for the qualifying fees, attendance fees and fees in respect
of accommodation and air fare in respect
of Dr. HJ Edeling
(Neurosurgeon) and Jeannie van Zyl (Industrial Psychologist).
4.6
The
plaintiff’s claim in respect of past hospital and medical
expenses to be postponed to 1 April 2019 to the pre-trial roll.
III
DISPUTE
[5]
The quantum of general damages remained in dispute. The parties
submitted all relevant expert reports by consensus and the dispute
was argued on the papers.
[6]
The defendant submitted that in the circumstances an amount of
R620 000, 00 would represent fair compensation as far as
general
damages are concerned.
The plaintiff argued
that the correct amount for general damages would be R1 000 000,
00.
IV
THE LAW
[7]
The manner of determination of general damages in personal injury
cases is trite.
7.1
In
determining the quantum of general damages in personal injury cases
the trial court essentially exercises a general discretion.
De
Jongh v Du Pisani N.O
.
2005 (5) SA 547
(SCA) at paragraph 60 laid down the basic rule in
that the award should be fair to both sides, it must give just
compensation to
the plaintiff, but not pour largesse from the horn of
plenty at the defendants’ expense.
[1]
7.2
General
damages is the broad term given to non-pecuniary loss such as pain
and suffering, loss of amenities, emotional harm, etc.
As pointed out
by the court in the case of
Hendricks
v President Insurance
1993
(3) SA 158
C the nature of the damages which are awarded make
quantifying the award very difficult.
7.3
The
Appellate Division in
Sandler
v Wholesale Coal Suppliers
1941 AD, 194
at 199 stated:
“
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.”
7.4
There is
unfortunately no expert that can place an exact value to the
abovementioned losses. The damages that are to be awarded
should be
assessed by taking into account the age, sex, status, culture,
lifestyle and the nature of the injury suffered as well
as having
regard to previous awards made for similar injures. Also, other
factors which are often taken into account include the
degree of pain
suffered. The fact that pain is subjective is taken into account,
whether further surgery can be expected, whether
the plaintiff has
debilitating scarring, is unable to fend for him/herself and has a
decreased life expectancy are examples of
factors that guide the
court. This discretion is not restrained by an inexorable tariff
drawn from previous similar awards.
7.5
It is not
enough to compare the general nature of injuries. All factors
affecting the assessment of damages must be taken into account.
Once
it is established that the circumstances are sufficiently comparable,
then only are comparable cases to be used as a general
yardstick to
assist the court in arriving at an award.
[8]
The comparable cases referred to by counsel are:
8.1
H
Nate v RAF
,
Case Number 2843/2016, judgement on 25 October 2018, FS Division
wherein R1 100 000.00 was granted.
8.2
D
Mbhele v RAF
,
Case number 4572/2015, judgement on 1 March 2018, FS Division wherein
R850 000.00 was granted.
8.3
De
Jongh v Du Pisani N.O.
2005 (5) SA 547
(SCA); R250 000.00 was granted (R600 000.00:
2018).
8.4
Van
der Mescht v RAF
,
IV J2-42, Case number 2008/12182 12 March 2010, South Gauteng High
Court. R400 000.00 was granted (R620 000.00: 2018).
[9]
Each case must be adjudicated on its own merits.
Van
Heerden J in
Dikeni v Road Accident
Fund
2002 C&B (Vol 5) at B4 171
stated that:
“
Although
these cases have been of assistance, it is trite law that each case
must be adjudicated upon on its own merits and no one
case is
factually the same as another…… previous awards only
offer guidance in the assessment of general damages.”
V
THE MATTER
IN CASU
: THE PLAINTIFF
[10]
As stated above; the expert reports are common cause. The report of
Dr H.J Edeling, a neurosurgeon, depicts the material issues.
He took
cognisance of, amongst others, the hospital reports, ambulance
reports, RAF 4 report of Dr Irsigler (Trauma surgeon) and
radiology
reports of Dr Nel.
10.1
The
plaintiff is 35 years old. The date of injury was 27 October 2013 at
the age of 30 years old.
10.2
She is
employed as a Crime Information Officer in the South African Police
Services (SAPS). She matriculated in 2002. She completed
a one-year
certificate in Information Technology in 2004 and in 2008 obtained a
certificate that qualified her as a call centre
consultant. In the
meanwhile, she worked as a cashier, pay point operator and did a
learnership at the Department of Education.
From January 2011 to
September 2012 she was enrolled as a Trainee Constable and was
appointed permanently in October 2012.
10.3
After the
accident she remained absent from work for four months while
recuperating from her injuries. When she resumed her duties,
it was
realised that she cannot execute her duties and she was transferred
to the position of Crime Information Officer.
10.4
At the time
of the accident she was single and living with her mother, 2 brothers
and daughter in a house in Witsieshoek. In addition
to her work she
performed routine household tasks: “She played netball, enjoyed
going out with friends, going to church,
listening to music and
reading books. She was in good health, with no physical, mental or
psychological difficulties and no disabilities
in relation to her
work or amenities. She had not experienced any learning difficulties
in matric or while studying for her subsequent
certificate
qualifications.”
10.5
After the
accident she was treated in the casualty ward where after she was
transferred to the ICU. She remained here for three
days. She
remained in the general ward for two and a half weeks.
10.6
Her
treatment included two operations and physio-and-occupational
therapy.
10.7
The injury
diagnosis is a traumatic but moderate brain injury, compression wedge
fracture L2, L3 and L4. Fractured right tibia and
fibula. Fractured
right pubic rami and ischium. The outcome diagnosis is post traumatic
neurocognitive/ neuropsychological disorder,
post-concussion
dizziness, mechanical back pain, scarring, mood disorder secondary to
the musculoskeletal syndrome and changes
in life circumstances. There
have been considerable changes in physical function, mood and
behaviour that are impacting on amenities,
life roles and
circumstances.
“
Her
leg was not stable shortly after the incident. She fell down a lot
and struggled with the facilities at work. She struggled
to get
inside a car and couldn’t sit for long.”
10.8
She was
moved to a different position still inside the SAPS but her salary
was smaller because she could not work overtime anymore.
She cannot
wear a bullet proof vest anymore so is fearful at crime scenes and
cannot run anymore. She works in a sympathetic environment.
Her
commander noticed that she is very forgetful and guides her by
letting her write down relevant tasks and matters. She cannot
sit,
stand or walk for long.
10.9
Her social
life changed since she cannot go to church anymore, play netball and
socialise effectively. She has become irritable
and short tempered.
10.10
In
conclusion by Dr Irsigler the following was noted; Surgical scars on
her back and ankle, stiffness and discomfort in walking
affected by
her right ankle and back. She has no abnormalities of her cervical
spine and no physical neurological deficits of the
cranial nerve
function or long track motor or sensory functions in her limbs.
10.11
At
superficial level her mental function appears to be within normal
limits for her educational and vocational status. More detailed
there
are impairments that include variable attention, resulting in need
for repetition and explanation of certain questions, paucity
of
speech, variable difficulties with the retrieval of memories, a blunt
affect with a lack of drive and determination and questionable
insight and impaired capacity to provide a coherent and credible
account of her condition and circumstances. Her organic neurological
sequalae of her brain injury have stabilised and become permanent.
VI
CONCLUSION
[11]
Taking all the factors into account a fair and just compensation for
general damages for the plaintiff is the amount of R850 000.00.
[12]
ORDER
1.
The
defendant shall make payment to the plaintiff of compensation for
loss of income in the amount of R919 854.80 and general
damages
in the amount of R850 000.00.
2.
The total
amount of R1 769 854.80 is payable within fourteen (14) days from
date of this order, failing which interest will start
to accrue from
the date of this order at a rate of 10,25% per annum until date of
final payment.
3.
The
defendant shall furnish the plaintiff with an Undertaking in terms of
Section 17(4)(a) of the Road Accident Fund Act, Act No
56 of 1996 for
100% of the plaintiff’s future accommodation in a hospital or
nursing home, or treatment or rendering of a
service, or supplying of
goods or related expenses in respect of injuries sustained by the
plaintiff in the motor vehicle collision
which occurred on the 27
October 2013.
4.
Payment is
to be made into the following account: -
Account
Name : Edeling Van
Niekerk Inc
Bank
:
Nedbank
Branch
:
Business Westrand
Account
number: […]
Branch
code :
128605
5.
The
defendant pays the plaintiff’s taxed or agreed party and party
costs and correspondent’s fees on the High Court
Scale which
costs
inter
alia
will include the following:
5.1
The costs
of Senior-Junior Counsel for the 12
th
and 13
th
of February 2019;
5.2
All costs
in obtaining all medico-legal-reports, joint minutes and an actuarial
report as well as the plaintiff’s travelling
and lodging costs
in attending the plaintiff’s and defendant’s expert
medical appointments as well as the trial.
The plaintiff filed
the following expert reports:
1. Dr. D. Irsigler
(Trauma Surgeon);
2. Dr. H. E. T. van den
Bout (Orthopaedic Surgeon);
3. Dr. L. Fine
(Psychiatrist);
4. Dr. H. J. Edeling
(Neurosurgeon);
5. Ms. C. Angus (Clinical
Psychologist);
6. Ms. K. du Toit
(Occupational Therapist);
(Alison Crosbie
Occupational Therapists);
7. Mr. J. van Zyl
(Industrial Psychologist);
8. Mr. G.A. Whittaker
(Actuary).
5.3
The
defendant is also liable for the qualifying fees, attendance fees and
fees in respect of accommodation and air fare in respect
of Dr. HJ
Edeling (Neurosurgeon) and Jeannie van Zyl (Industrial Psychologist).
5.4
The
plaintiff’s claim in respect of past hospital and medical
expenses is postponed to 1 April 2019 to the pre-trial roll.
________________
M.
OPPERMAN, J
On
behalf of the plaintiff: Adv. H. Kriel
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN
On
behalf of the defendant: Adv. De La Rey
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN
[1]
Pitt v Economic Insurance Co Ltd
1957
(3) SA 284
(D) 287E-F.