Duda obo K v Road Accident Fund (4059/2013) [2019] ZAFSHC 76 (13 June 2019)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 76
|

|

Duda obo K v Road Accident Fund (4059/2013) [2019] ZAFSHC 76 (13 June 2019)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
4059/2013
In
the matter between:-
MPOTSENG
MARIA DUDA obo K
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
CORAM
:
MBHELE , J
HEARD
ON
:
27 MARCH 2019
DELIVERED
ON
: 13 JUNE 2019
[1]
On 06 March 2010 Makoatha Street, Freedom Square , Bloemfontein a
collision occurred when a motor vehicle with registration numbers
F
[...] GP ( the insured vehicle) collided with a six year old K ( the
plaintiff) who was a pedestrian (the collision). As a result
of the
collision the plaintiff suffered severe bodily injuries.
[2]
Plaintiff issued summons against the defendant under case number
4059/2013 for damages suffered as a result of the collision on
the
basis that the collision was caused by the sole negligence of the
insured driver .
[3]
The defendant conceded the merits and was found liable for 100% of
the plaintiff’s proven or agreed damages resulting from the
collision. The defendant, further, made an undertaking in terms of
section 17 (4) (a) for the plaintiff’s future medical costs.
Future
loss of earnings were settled at
R 1 702 955.00
. The
matter serves before me for determination of Plaintiff’s general
damages.
[4]
The defendant admitted the following reports of the plaintiff’s
experts:
Dr.
L. Jedeiken ( Plastic and Reconstructive surgeon)
Dr.
Badenhorst ( Neurologist)
Dr.
Jaffe ( Orthopaedic Surgeon)
Dr.
Domingo ( Neorosurgeon)
Dr.
Ogilvy ( Speech and language therapist)
Ms.
E. Burke ( Neuropsychologist)
[5]
The plaintiff’s injuries were described as follows by Dr. Jaffe, an
orthopaedic surgeon:
The
plaintiff sustained a head injury with a severe lacerations of the
chin and forehead. He has lacerations on both knees. He is
self
conscious of his facial scarring and has severe headaches in the
temporal region. He has mood swings and has become extremely
aggressive. He turns very aggressive when playing with friends. He
has on one occasssion stabbed one of his friends with a pen. He
did
not display such behaviour premorbid.
[6]
Dr Jedeikin ( Plastic and reconstructive surgeon) gave the following
account of the plaintiff’s disfiguring scars and their
significance: The left eyebrow scar is situated on the inner medial
aspect of the left eyebrow and it extends upwards into the forehead
with a curvilinear shape. He noted further scars in the following
body parts: lower lip and chin, neck right lower abdomen, right
central abdomen, right knee and left knee.
He
opines that revisionary surgery is required for the left eyebrow scar
and lower lip and chin scar, which will require 3 different
operations. Mild improvement only will be gained in respect of the
lower lip and chin scar.
In
his view no revisionary surgey can be undertaken for the neck scar,
right lower abdomen scar, right central abdominal scar, right
knee
scar and left knee scar.
[7]
Dr Badenhorst ( Neurologist) is of the opinion that the plaintiff
sustained a moderately severe concussive head injury, which
will be
in keeping with moderate changes in cognitive function and poor
performance at school. The minor’s aggressive behaviour
makes it
difficult for him to associate with his peers. He opines that the
change in his behaviour is directly linked to the head
injuries he
sustained. .
[8]
Dr Domingo ( Neurosurgeon) opines that although the plaintiff’s
brain injury may be described as mild he is left with behaviourial
problems, memory and concentration impairment. As a result of
problems associated with memory and concentration he has performed
poorly at school and has had to repeat grades. The headaches are
consistent with post traumatic headaches which will persist way
into
the furuture. He is of the view that due to these permanent deficits
the minor will not progress to high school.
[9]
Dr Ogilvy ( Speech and Lanuage therapist) completed speech and
language assessment. She is of the opinion that the Minor present
with normal speech production, semantics, syntax and pragmatics.
However, he presents with marked receptive cognitive-communication
deficits. More specifically, the plaintiff presents with significant
difficulties in the processing, comprehension and recall of
auditory
verbal information when the information increases in length, amount
of detail and complexity, as well as poor application
of higher
order, a cognitive linguistic thinking skill that is in processing
the gestalt and making successful inferences.
Dr
Ogilvy found that the plaintiff’s ability to process, interpret,
and execute oral commands are poor. He presents with reduced
verbal
information processing capacity and difficulties at the working
memory. He has difficulties in the immediate recall of auditory
verbal inrofmation. He has poor complex comprehension skills, both at
factual and at an inferential level. He struggles to hold commands
in
memory and sustaining auditory attention.
Dr
Ogilvy is of the opinion that the plaintiff’s scholastic
difficulties are consistent with the brain injuries he sustained and
that this will be exacerbated as he progresses to further grades
where demands placed on the processing, comprehension and recall
of
auditory of verbal information of increased length and complexity and
on the application of higher order cognitive- linguistic
thinking
increase substantially from one grade to the other. She opines that
the plaintiff will not cope in the mainstream secondary
education. In
her opinion the Minor is at high risk of not being able to sustain
employment in future.
[10]
Ms Burke ( Neuropsychologist) defers to Dr Ogilvy in respect of the
plaintiff’s speech and language problems. She indicates
that her
neuropsychological test results revealed wide areas of preserved
functioning. She found that he had difficulties with sustaining
attention and concentration. He requires constant supervision. She
opines that her results are consistent with the minor’s reported
behaviour post accident and that the problems will persist into the
minor’s future.”
[11]
CONTENTIONS BY THE PARTIES
Parties
are in agreement that the Plaintiff suffered severe injuries which
impacted on his scholastic abilities. His life has been
negatively
altered.
Mr
du Toit, on behalf of the plaintiff, submitted that the minor’s
life has been tremendously destroyed by the collision. He will
most
probably remain unemployable in his injured state in the long term.
He contended, further, that the minor should be compensated
for
general damages in the amount of R 900 000 , 00.
[12]
DEFENDANT’S CONTENTIONS
Mr.
Sanders, on behalf of the defendant, submitted that the plaintiff’s
injuries in the current matter are not worse than in most
cases
referred to in support of his case. His view is that the sequelae of
the parties in the relevant cases were more serious than
the
plaintiff’s. He contended that the fact that he was too young when
the accident occurred he has with time grown accustomed
to the scars
and limitations imposed on his life. He submitted, further, that the
appropriate amount for the minor’s general damages
is R300 000. 00
[13]
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).
[14]
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).
[15]
Plaintiff submitted psycho-legal, neurological and
orthopaedic reports detailing the extent of the plaintiff’s
injuries. All evidence
shows that the plaintiff’s life has been
permanently interrupted. He has to live with facial scarring that
continues to affect
his confidence and self esteem. He will not be
able to cope with the demands of academic life. He will struggle to
cope with secondary
education because of the resultant cognitive
defects. He has become aggressive and will struggle to maintain
healthy relationships
in future as a result of the brain damage he
sustained. He will struggle to sustain employment and compete in an
open labour market.
His dreams have been shattered.
[16]
The undisputed evidence shows that the minor was a motivated and
hardworking pupil before the accident. His scholastic performance
took a knock after the accident resulting in him repeating most of
his grades. The evidence shows that he was likely to obtain a
post
matric qualification had he not been injured in the collission.
[17]
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 negatively affected his life.
[18]
I have also considered the cases I was referred to by Messrs . du
Toit and Sanders. I have noted that none of the cases fits
squarely
with the circumstances of the current matter. Most of them are
distinguishable because of the nature of injuries sustained
by the
victims and their sequelae. The sequelae in the cases referred to
were either more serious or less serious than in the current
matter.
[19]
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."
[20]
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. The evidence shows that the minor’s
life has been permanently compromised by the collision.
His career,
social and family life is greatly compromised.
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 650 000.00.
Loss
of earning capacity
R 1 709 955.00
General
damages
R 650 000.00
Less
R 300 000-00
[21]
ORDER:
I
grant the judgment in favour of the Plaintiff as follows:
Defendant
shall pay the plaintiff the sum of R 2 059 955 ( two million
and fifty nine thousand nine hundred fifty five rands)
which amount
is compiled as follows:
the
sum of R 650 000.00 ( Six Hundred and Fifty Thousand rands )
in respect of general damages;
The
sum of R1 709 955.00 ( One million seven hundred and nine
thousand nine hundred and fifty five rands) in respect
of loss of
income;
Minus
the sum of R 300 000 ( three hundred thousand rands) paid to
the plaintiff as part payment of the capital amount and
received by
plaintiff’s attorneys.
Into
the plaintiff’s attorneys’ bank account with the following
details:
Bank:
FNB
Account
Holder: DSC ATTORNEYS
Branch:
PORTSIDE
Account
Number: [...]
Branch
Code: 210651
The
Defendant shall pay the full capital sum within 30 calendar days of
the date of this order, by way of electronic transfer into
the trust
account, details of which are set out above.
The
Defendant shall not be liable for interest on the capital amount
timeously paid.
COSTS
The
Defendant shall pay the Plaintiff’s taxed or agreed costs on the
High Court scale as between party and party, but not limited
to the
costs as set out hereunder.
In
the event that costs are not agreed, the Plaintiff shall serve the
notice of taxation on Defendant’s attorneys of record and
shall
allow Defendant 30 calendar days to make payment of the taxed costs.
GENERAL
COSTS
The
Defendant shall pay the taxed or agreed costs and any other costs
attendant upon obtaining payment of the capital amount and
costs.
The
Defendant shall be liable to pay the travelling, accommodation and
related costs incurred by the Plaintiff’s counsel, experts
and
attorney.
The
Defendant shall pay the taxed or agreed costs of the interpreter.
EXPERT
WITNESSES
Regarding
the expert witnesses listed herein below (“the experts”), the
Defendant shall pay the taxed or agreed costs and qualifying
fees
and expenses of such experts, as well as the costs attached to the
procurement of the reports prepared by these witnesses,
the costs of
attending all medico legal examinations and any other related costs,
including x-rays and travelling costs to and
from such examinations
(travelling costs to and from the examinations to be determined by
the taxing master):
Dr
R Jaffe (Orthopaedic Surgeon);
Dr
L Jedeiken (plastic & Reconstructive Surgeon);
Dr
F Badenhorst (Neurologist);
Ms
E Burke (Neuropsychologist);
Dr
D Ogilvy ( Speech & Language Therapist);
Ms
E Cloete (Occupational Therapist);
Dr
R Hunter (Industrial Psychologist);
Munro
Consulting Actuaries.
COUNSEL’S
FEES
The
Defendant shall pay the taxed or agreed fees of the Plaintiff’s
counsel.
NECESSARY
WITNESS
MM
Duda is declared a necessary witness.
COSTS
OF CURATORS and/or TRUST
12.
The plaintiff shall apply for the appointment of a curator ad litem
and thereafter for the appointment of a curator bonis or create
a
trust subject to the provisions below.
12.1.
COSTS
OF A CURATOR AD LITEM
The
Defendant shall pay the costs of the application to appoint the
Curator ad Litem on the High Court scale, as between party
and
party, including the costs of the medical reports filed as part of
the said application, as taxed or agreed, plus VAT;
The
Defendant shall pay the costs of the Curator ad Litem on the High
Court scale, as taxed or agreed, plus VAT.
COSTS
OF A CURATOR BONIS
In
the event of the High Court, or other competent Court having
Jurisdiction, appointing a Curator Bonis to the Plaintiff, the
Defendant shall pay the costs of the Curator Bonis, as taxed or
agreed, such costs including for the sake of clarity, but not
limited to:
12.2.1.1.The
costs of the application to appoint the Curator Bonis on the High
Court scale as between party and party, as taxed or
agreed, plus VAT
(“the application costs”);
12.2.1.2.
The costs, if any, incurred by the Curator Bonis in furnishing
security to the Master;
12.2.1.3.
The fees and costs of the Curator Bonis in respect of administering
the capital and the undertaking.
COSTS
OF A TRUST
In
the event of the creation of a Trust:
The
costs of the creation of a Trust, and the appointment of the
Trustee to, inter alia, protect, administer, and/or manage
the
capital amount referred to in paragraph 3 above shall be
recoverable in terms of the Undertaking referred to in paragraph
1
above;
The
aforesaid Undertaking shall further include the following:
12.3.2.1
The costs of the Trustee in administering the Patient’s estate and
the costs of administering the Statutory Undertaking
furnished in
terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
,
such costs to be limited to the prescribed tariff applicable to
Curators as reflected in Government Notice R1602 of 1 July 1991,
specially paragraphs 3(a) and 3(b) of the Schedule thereto; and
12.3.2.2
The costs of the Trustee furnishing annual security and obtaining an
annual security bond to meet the requirements of the
Master of the
High Court in terms of the Trust Property Control Act 57 of 1988, as
amended.
12.3.2.3
It is recorded that in the event of the creation of a Trust as
aforesaid, the costs in administering the said Trust shall
not exceed
those cost as stipulated in paragraph 12.2.1.3.
PAYMENT
PROVISIONS
Payment
of the taxed or agreed costs reflected above shall be effected
within 30 days of agreement or taxation (“the due date”)
and
shall be effected by electronic into the Plaintiff’s attorneys
trust banking account, listed herein below.
Should
the aforementioned capital amount and costs not be paid on the due
date, the Defendant shall be liable for interest thereon
at the
prescribed statutory rate.
_____________
NM
MBHELE, J
On
behalf of the plaintiff: Adv. AJ du Toit
Instructed
by: ROSENDORFF REITZ BARRY.
BLOEMFONTEIN
On
behalf of the defendant: Adv. Sanders
Instructed
by: MADUBA ATTORNEYS
BLOEMFONTEIN