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[2019] ZAFSHC 234
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S M v Road Accident Fund (4719/2017) [2019] ZAFSHC 234 (6 December 2019)
SAFLII
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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
number: 4719/2017
In
the matter between:
S
M
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
6 NOVEMBER 2019
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
5 DECEMBER
2019
Quantum
of damages – Comparable awards – Cautious approach in
making the award.
[1]
The only issue to be determined is the quantum of general damages.
Despite attempts to settle this matter, the parties remained
far
apart from each other on this aspect. The plaintiff is claiming the
sum of R800 000.00 while the defendant is of the view that
an amount
of R400 000.00 will be just and fair in the circumstances of the
injuries sustained in this regard.
[2]
It is common cause that the plaintiff suffered the left arm, right
upper leg, right ankle and multiple soft tissue injuries
as a result
of the accident. This is noted as such by medical experts appointed
by both parties. The experts agreed as recorded
in the joint minutes
that she suffered from acute pain for ten (10) days and then moderate
pain for another three (3) months. It
is apposite to note that she
has not been pain free since the accident.
[3]
Given the extent of her injuries, orthopaedic surgeons are
ad
idem
that provision must be made for
physiotherapy, medication, bio kinetics and arthroscopy of the
shoulder. There must also be removal
of the instrumentation of the
right femur and she will require a built-up shoe orthosis.
Importantly, they agree that the injuries
have had a profound impact
on her amenities of life and this will persist in the future.
[4]
In order to substantiate the claim of R800 000.00 the Plaintiff
referred me to decided cases. It is the comparable awards that
I turn
to in order to make the award that is just and fair to the parties.
[5]
In
Mgudlwa
v Road Accident Fund
the court made an award for general damages in the amount of R300
000.00.
[1]
The plaintiff had sustained an extremely comminuted fracture of the
lower end of the femur and scars on the upper end of
the left tibia.
The injuries had significant adverse effects on his legs, spine and
hips. These also left him with a deformity
of the proximal end of the
left femur with the left leg 5 centimetres shorter than the right
leg. He was compelled to use an auxiliary
crutch because of a limp on
the left. He could no longer squat or drive a motor vehicle. As a
result further corrective surgery
was required to improve his left
leg.
[6]
This matter was relied upon by both counsel in their heads of
argument. The award referred to above is R 482 000.00 in the present
value. The injuries sustained in Mgudlwa were less severe compared to
those sustained by the plaintiff. It stands to reason that
the award
for general damages must be higher in this matter.
[7]
I was also referred by both counsel to the matter of
Ncama
v Road Accident Fund
[2]
.
The plaintiff had suffered fracture of the right femur, fracture of
skull, neck injury, soft tissue injury of the right and
left
sacro-iliac joints and pelvic ring. An open reduction and internal
fixation of the femur was performed and plaster of Paris
cast
applied. He also received physiotherapy and crutches to walk about.
It is recorded that the fracture of the skull was treated
conservatively. The neck injury was treated with a neck brace, pain
medication and anti-inflammatories. Clearly, his injuries are
more
severe than those sustained by the plaintiff. The submission by
counsel for the plaintiff is that the lower limb injuries
of the
plaintiff are more severe. I do not find logic in this argument
because the award was made looking into the injuries
holistically not
piecemeal as it is suggested in the heads of argument. The cumulative
effect of the injuries is what inspired
the court to decide as it
did. The plaintiff in the Ncama matter was awarded the sum of R500
000.00 for general damages which is
R 650 000.00 in the present day
value.
[8]
In
Ndaba
v
Road Accident Fund
the plaintiff suffered
multiple orthopaedic injuries including straddled pelvic fracture,
right femoral fracture, dashboard left
knee and right shoulder
injuries. A further injury of the ruptured bladder is a result of
blunt abdominal trauma. Open reductions
and fixations were performed
on the hip joint, femur and tibia. It appears that orthopaedic
complaints were aggravated by abnormal
weather conditions. These
injuries had rendered her unfit to any type of employment in the open
labour market thus she could not
continue as the hawker. She was
awarded the sum of R300 000.00 which equals to R 456 900.00 in the
present day value.
[9]
Counsel for the defendant also relied on the decision of the court in
Venter v Road Accident Fund.
In that matter a 22 year old salesman, who was 18 years old at the
time of the injury, sustained numerous injuries the most problematic
being the shortening of the right femur which appears to have caused
some back ache from time to time. There was also the loss
of function
of the right hand. The plaintiff in that matter was awarded R300
000.00 for general damages which equates to R 462
000.00 in present
day value. The nub of the submission is that the extent of injuries
and the resultant effects exhibited by the
plaintiff in the present
matter are of a less severe nature than those in the matter above.
[10]
Lastly I was referred to the decision of this Division of the High
Court in
Litseo
v Road
Accident Fund
where an award of R700 000.00 was made in respect of general damages.
The plaintiff in that matter who was a hawker had suffered
injuries
to the right upper neck and knee, the right lower leg and ankle and
the left knee and lower leg. These will also require
treatment and
surgery in the future. The patent effect of the injuries is that they
have rendered her and unfair competitor in
the open labour market.
This simply means that her opportunities have been nullified. These
injuries are almost similar to those
suffered by the plaintiff in the
current matter. It is important to note that the learned judge
adopted the cautious approach in
making the award preferring to “err
on the conservative side”.
[3]
[11]
There are no rules laid down in order to approach the issue of
general damages. The accepted approach is the flexible one described
in
Sandler
v Wholesale Coal Suppliers Ltd
[4]
.
There the learned judge said the following:-
“
The
amount
to
be
awarded
as
compensation
can
only
be
determined
by
the
broadest
general considerations and the figure arrived at must necessarily be
uncertain, depending upon the judge's view of what
is fair in all the
circumstances of the case.”
[12]
This was confirmed by the same court in
Southern
Insurance Association Ltd v Bailey N.O.
[5]
in the
following terms:-
“
The
Appellate Division has never attempted to lay down rules as to the
way in which the problem of an award of general damages should
be
approached. The accepted approach is the flexible one described
in
Sandler
v Wholesale Coal Suppliers Ltd
1941
AD 194
at 199, namely: "The amount to be awarded as compensation
can only be determined by the broadest general considerations and
the
figure arrived at must necessarily be uncertain, depending upon the
Judge's view of what is fair in all the circumstances of
the case."
[13]
It is generally difficult to find a matter that is on all fours with
the previous comparable awards. These must be used as
a useful guide
in order to achieve an award that is fair and just to both parties.
The courts have repeatedly cautioned that the
plaintiff must be
compensated justly but “not pour out of largesse from the horn
of plenty at the defendant’s expense”.
[6]
[14]
In conclusion and considering all the relevant factors in this matter
in particular the awards in comparable cases discussed
above, the
decrease in the value of money and the severity of the injuries
sustained, it is my considered opinion that a just and
equitable
amount is
R700 000.00 for general damages.
[15]
Therefore I make the following order:-
15.1. The defendant is
ordered to pay the sum of R700 000.00 (seven hundred thousand rand)
for general damages for pain and suffering,
loss of amenities of
life, disablement and disfigurement.
15.2. In the event of the
default, interest at the rate of 10.25% per annum shall accrue
calculated from fourteen (14) days of the
date of this order until
date of final payment.
15.3.
The
defendant is ordered to furnish to the plaintiff an undertaking in
terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
,
for 100% of the future accommodation of the plaintiff in a hospital
or nursing home or the treatment of or the rendering of a
service or
the supplying of goods to the plaintiff arising out of injuries
sustained by her in the motor vehicle collision mentioned
above, in
terms of which undertaking the defendant will be obliged to
compensate her in respect of the said costs after the costs
have been
incurred and on proof thereof.
15.4.
The defendant to pay
the plaintiff's taxed or agreed party and party costs on the High
Court scale.
15.5.
The reasonable
preparation / qualifying / accommodation / travelling and full
reservation fees and expenses (if any) of the following
experts, and
the costs relating to the plaintiff attending their medico legal
examinations:
15.5.1 Dr L F Oelofse
(Orthopaedic Surgeon);
15.5.2 Hanri Meyer
(Occupational Therapist);
15.5.3 Ben Moodie
(Industrial Psychologist);
15.5.4
John Sauer (Actuary);
15.6.
Payment
of the taxed or agreed costs shall be made within 14 (fourteen) days
of taxation, and shall likewise be effected into the
trust account of
the plaintiff’s attorney;
15.7.
No
interest will accrue in respect of any of the aforesaid amounts if
payment is made on or before the stipulated dates.
__________________
M.
A. MATHEBULA, J
On
behalf of Plaintiff: Adv. K Peterson
Instructed
by: VZLP Incorporated
c/o
Du Plooy Attorneys
Bloemfontein
On
behalf of
Defendant
:
Adv. K Nhlapo
Instructed
by: Maduba Attorneys
Bloemfontein
[1]
2011 (6E3) QOD 1 (ECM)
[2]
2015 (7E3) QOD 7 (ECP)
[3]
2019
ZAFSHC/52
[4]
1941 AD 194
at 199
[5]
1984 (1) SA 98
AD at 99 H
[6]
Pitt v Economic Insurance
Co Ltd
1975 (3) SA 264
(N) at 267