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[2019] ZANCHC 56
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Stanton v Road Accident Fund (2618/2016) [2019] ZANCHC 56 (8 November 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, NORTHERN CAPE DIVISION, KIMBERLEY
Not reportable
Case No:
2618/2016
In the matter
between:
ALME
STANTON N.O
PLAINTIFF
And
ROAD
ACCIDENT
FUND
RESPONDENT
Heard: 13
September 2019
Delivered: 08
November 2019
Judgment
PHATSHOANE ADJP
[1] Adv Almѐ
Stanton NO, in her representative capacity as the curator
ad litem
for the patient, Mr Jacobus Strauss (“Strauss”),
instituted action against the Road Accident Fund, the defendant, in
which she claims on behalf of Strauss damages flowing from bodily
injuries sustained during an accident which occurred on 13 February
2012 at the intersection of Robertson Street and Main Road,
Beaconsfield, Kimberley, in which a motorcycle ridden by Mr John
Slater
with Registration Number [….] collided with a bicycle
which was ridden by Strauss.
[2] The
defendant has conceded liability on the merits and on a number of
issues pertaining to the plaintiff’s
claim for damages. The
defendant has also admitted liability with an
80/20%
apportionment ratio of the plaintiff’s proven damages
.
It further conceded Strauss’s loss of income and/or income
earning potential the
total
of which, after applying the 80/20% apportionment, is in the order of
R338 078.24 and
includes
past and future losses. What consequently remains is
quantifying
the general damages due to Strauss for pain, suffering, loss of
amenities of life, disfigurement and incapacity.
[3] The
plaintiff and the defendant’s agreed stated case is
substantially the following:
3.1
Mr
Strauss is 44 years old, single with no dependants. He was born with
a hearing and speech impairment. Consequent upon the accident,
described earlier, he sustained the following injuries: a base of the
skull fracture with fracture line extending through left
mastoids
into middle ear; severe head/brain injury with neurocognitive and
emotional disturbance; soft tissue injury to the left
knee and
patella. He presents with a mild chondromalacia of the patella to the
left knee (“runner’s knee”- a
condition that causes
irritated cartilage under the knee and a soft or deformed patella).
He has a restricted gait not attributable
to the knee injury but the
head injury. The orthopaedic injuries have left him with only minor
functional impairment.
3.2
Strauss resided at Lewensruimte Institute for deaf individuals in
Worcester
where he lived independently and worked in the pottery
department. He also worked with power tools in the woodwork
department.
3.3
Three years prior to the collision Strauss was residing with his
sister in Kimberley,
Northern Cape. He secured employment as a car
washer at Monument Car Washers, Kimberley, where he earned an income
of R2 320.00
per month with a postulated income of R4 676.00
per month in 2018. He would have been able to work until the age of
62 years
and six months but the accident has rendered him
unemployable in the open labour market.
3.3
The injuries had a permanent impact on Strauss’s amenities of
life. He returned to
Lewensruimte Institute after the collision.
However, he is no longer allowed to work with power tools but sands
wooden articles
such as wooden doors for which he receives an
allowance far less than what he did in the past. He requires direct
supervision and
care. He resides in a group home headed by a house
mother and father due to his dependency.
3.4
The patient’s injuries are regarded as serious as
contemplated in
s 17
of the
Road Accident Fund Act,
56 of 1996
, as amended,
read
with Regulation 3 of the Road Accident Fund Regulations, 2008. He
will require future treatment and is therefore entitled to
an
undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund
Act.
[4
] The trite
principle in awards for general damages was restated as follows in
Protea Assurance Co Ltd v
Lamb
:
[1]
‘
(T)he
trial Judge has a large discretion to award what he in the
circumstances considers to be a fair and adequate compensation
to the
injured party for these
sequelae
of his injuries. Further, this Court will not interfere unless there
is a "substantial variation" or as it is sometimes
called a
"striking disparity" between what the trial Court awards
and what this Court considers ought to have been awarded.
(See
Parity
Insurance Co. Ltd. v.
Van
den Bergh
,
1966 (4) SA 463
(AD) at p. 478
in
fine
,
and
Sandler
v.
Wholesale
Coal Suppliers Ltd.
,
1941 AD 194
at p. 200). Where interference is justified in terms of
the principles enunciated above, this Court will substitute its own
assessment
of damages.
The
further question that arises is to what extent, if any, this Court
should be guided in its assessment of general damages
by awards
in previous decided cases……..
…
(T)he
trial Court or the Court of Appeal, as the case may be, may pay
regard to comparable cases. It should be emphasised, however,
that
this process of comparison does not take the form of a meticulous
examination of awards made in other cases in order to fix
the amount
of compensation; nor should the process be allowed so to dominate the
enquiry as to become a fetter upon the Court's
general discretion in
such matters. Comparable cases, when available, should rather be used
to afford some guidance, in a general
way, towards assisting the
Court in arriving at an award which is not substantially out of
general accord with previous awards
in broadly similar cases, regard
being had to all the factors which are considered to be relevant in
the assessment of general
damages. At the same time it may be
permissible, in an appropriate case, to test any assessment arrived
at upon this basis by reference
to the general pattern of
previous awards in cases where the injuries and their
sequelae
may have been either more serious or less than those in the case
under consideration.’
[5] Mr Rust,
for the plaintiff, referred,
inter
alia,
to
Monchonyane
v Road Accident Fund
[2]
where the claimant, a
25 year old male, sustained severe head injuries, fracture of the
left femur, and soft tissue injury
to the thorax. He was left
wheelchair bound and needed a full-time caregiver for his survival as
he was completely immobile and
could do nothing without assistance.
He was awarded general damages in the amount of R1 700 000.00
equivalent to R 1
874 000 in current values. He also referred to
Dlamini v Road Accident
Fund
[3]
where the claimant, an adult male winch operator at a mine, sustained
irreversible brain injury expected to cause permanent and
significant
neurocognitive and even psycho-organic abnormalities. He also had a
mandible fracture and a dislocated Metatarsophalangeal
(MTP) joint of
the second toe. He was awarded general damages in the amount of
R1 350 000 in 2015 which translates to
R1 666 000 in
current values. Mr Rust urged that the quantum of general damages be
in the vicinity of what was awarded in
Dlamini
v RAF
(supra).
[6] Mr
Jankowitz, for the defendant, referred to
Benjamin
NO v Road Accident Fund
[4]
,
where the plaintiff suffered severe brain injury resulting in urinary
incontinence, emotionally labile state, daily headaches,
low
self-esteem and being subjected to ridicule by other school children.
The plaintiff needed a curator and would be wholly incapable
of
earning an income in the future. She also sustained a fracture of the
femur and a pelvic fracture with the result that she was
unable to
run or walk fast. She was awarded R400 000 which is equivalent
to R880 000 in today’s terms.
[7] Mr
Jankowitz also relied on
Rabie
v MEC for Education, Gauteng
[5]
,
where a Grade 8 learner was thrown into the air by other learners and
instead of being caught safely, landed on his head. He suffered
multiple injuries. The magnetic resonance imaging (MRI)
investigations of the brain showed a fracture in the right frontal
area
through the lamina papiracea from right to left and a fracture
through the left colloid process with frontal contusion bilateral
and
multiple points of bleeding on the base of the skull and frontal
lobes. He also sustained a fractured left patella with signs
of
chondromalacia patellae with significant retro patella tenderness of
the left knee. He had significant impairments on the neuro-cognitive,
neuro-psychological and neuro-behavioural range. He suffered from
recurrent headaches, fatigue, poor concentration, poor memory,
slow
working tempo, irritability, impulsivity and psychological deficits.
After the incident his academic results deteriorated
drastically. He
was awarded R800 000 general damages, the equivalent of R1 098
000 in today’s terms.
Mr Jankowitz argued, with reference to
the above two cases, that an award of R800 000 would adequately
compensate Strauss.
[8] I have
also considered other similar cases including
Matthys
NO v Road Accident Fund
[6]
where the patient suffered
severe brain injury and other minor orthopaedic injuries. The patient
was left with significant cognitive
deficits. The list of his
(permanent)
sequelae
was extensive and he had insight into his condition in that he knew
that he suffered a major injury which left him inferior. He
underwent
a change in his disposition. He was forgetful, angry, temperamental,
unsociable and struggled to express himself clearly.
When at home he
was unclean and unhygienic and isolated himself from family and
friends. He experienced difficulty concentrating
and became less
productive in the workplace. His general enjoyment of life diminished
and even if he were to receive treatment
he would not have fully
recovered from the brain injury sustained and would never regain his
pre-accident level of capacity. He
was awarded R500 000 general
damages the present value of which is R686 000.
[9]
In
casu
, Strauss led a worthwhile life with his pre-morbid
disabilities. At present he is not only faced with hearing and speech
impairments
but is mentally handicapped as well. Apparent from the
stated case, prior to the accident he worked independently as a
potter and
also worked with power tools. He later on worked as a car
washer. Dr Parker opined that Strauss was “
already operating
at the margins of the society in that he was deaf and dumb and could
not be formally educated
....” and “
had the chance
to make his life meaningful in that he got a job at a car wash in
Kimberley where he worked for 3 years
.”
[10] Strauss suffered
untold anguish following the collision with long-lasting disruptive
impact on the circumstances
of his life. A significant feature of his
case is his traumatic brain injury. Due to the severity thereof Dr
Paker deems him incapable
of working in the open labour market or of
being “
useful in a
sheltered market
.”
This have had a profound effect on his personality and he will
forever remain in this twilight zone. He has lost his sense
of
self-worth and outlook on life. At present his services at the
institute have been reduced to menial tasks. He works under
supervision and cannot operate power tools. He is entirely dependent
on others because he suffers from memory loss.
[7]
For instance, he needs to be reminded about self-care hygiene such as
taking a shower or changing his clothes
[8]
.
He is in an emotionally labile state. His despondency, as recorded in
Dr Shafik Parker’s report, is quite telling
of how
self-conscious he is of his current condition. The doctor recorded
the following:
“
At
the end of the examination he [the patient] became very emotional and
started crying. He was telling the interpreter that before
the
accident he worked wonderfully at the car wash and had no difficulty
communicating neither working the whole day without even
taking leave
or taking minimum leave. All this has changed now and his mind
doesn’t function property.”
[11] In
Pitt
v Economic Insurance
Co
Ltd
[9]
it was held that ‘The Court must take care to see that its
award is fair to both sides - it must give just compensation
to
the plaintiff, but it must not pour out largesse from the horn of
plenty at the defendant's expense'.
[12] Even though the case
of
Matthys NO v Road Accident Fund 2013
(6A4) QOD 273 (GNP) is
sufficiently similar to this matter, the award made in that case was
too conservative in my view. I deem
fair and adequate compensation,
having had regard to Strauss’s circumstances and guidance
sought from the long line of cases
considered, to be R950 000.00.
I make the following order.
Order
1.
The
Road accident Fund, the defendant, is to pay the plaintiff, Adv Almѐ
Stanton NO, in her capacity as the curator
ad
litem
for the patient, Mr Jacobus Strauss, as follows:
1.1
general
damages in the amount of R950 000.00 (Nine hundred and fifty
thousand rand);
1.2
past
and future loss of income in the amount of R338 078.24; and
1.3
interest
on the aforesaid sums at the prescribed rate from a date 14 days
after the judgment to the date of payment.
2.
The
defendant is to furnish the plaintiff with an undertaking in terms of
s 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, for 80% of the
costs of future accommodation of Mr Jacobus Strauss in a hospital or
a nursing home for treatment or rendering
of a service or the
supplying of goods to him after such costs have been incurred and on
proof of payment thereof.
3.
The
defendant is to pay costs of suit.
MV Phatshoane ADJP
APPEARANCES:
FOR
THE PLAINTIFF: Adv J.M. Rust
Instructed
by Venters Rust Inc.
FOR
THE RESPONDENT: Adv DC Jankowitz
Robert Charles Attorneys
[1]
1971 (1) SA 530
(A) at 534-536
[2]
(RAF69/15)
[2017] ZANWHC 99
handed
down 30 November 2017
[3]
(59188/130 [2015] ZAGPPHC 646
delivered on 03 September 2015
[4]
2005 (5B4) QOD 205 (C)
[5]
2013 (6A4) QOD 227 (GNP)
[6]
2013
(6A4) QOD 273 (GNP)
[7]
This is captured in the reports by Ms Benita Crouse, an occupational
therapist, Dr Parker, a neurosurgeon, and Dr Bredenkamp,
a
counselling psychologist.
[8]
This appears in the occupational therapist report
by Ms Benita Crouse.
[9]
1957 (3) SA 284
(N) at 287.