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[2018] ZAFSHC 12
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Mbele v RAF (4572/2015) [2018] ZAFSHC 12 (1 March 2018)
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 number:
4572/2015
In
the matter between:
MBELE:
DAWID
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
HEARD
ON:
7 FEBRUARY 2018
JUDGMENT
BY:
BOKWA, AJ
DELIVERED
ON:
01 MARCH 2018
A
INTRODUCTION:
[1] The Plaintiff
suffered injuries as a result of a motor vehicle collision which
occurred on 02
nd
March 2014 on the R57 between Heilbron
and Sasolburg, approximately 4km outside of Heilbron. At the time of
the accident the Plaintiff
was a passenger.
B
ISSUES TO BE DETERMINED
[2] The Defendant has
conceded liability on the merits and is therefore liable for
100% of
the Plaintiffs proven or agreed damages. In confession, the Defendant
concedes further that the Plaintiff does qualify
for damages as
claimed. Exactly what the amount of such damages is, is a point in
dispute and an issue for determination.
C
BACKGROUND FACTS
[3] The
Defendant has agreed to furnish the Plaintiff with an undertaking
in
terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
,
for the cost of future accommodation of the Plaintiff in a hospital
or a 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 collision of 02
nd
March 2014, after such costs have been incurred and on proof thereof.
[4] The truth
and correctness of a number of experts' reports have been accepted.
It was not in dispute that as a result of the accident the Plaintiff
sustained the following personal injuries, severe head injury,
hip
injury, laceration to the face, medial right pneumothorax, left
acetabulum fracture and multiple abrasions.
[5] Plaintiffs
counsel took the court through various expert reports dealing
with
the Plaintiffs injuries, the sequelae thereof and its impact on the
Plaintiffs life including the impact on the employment
and the
amenities of his life.
[6] Great
emphasis was placed on the brain injuries and the impact it has
had
on Plaintiff's life. Counsel relied on the reports commissioned by
the Plaintiff, which reports stood as evidence during the
trial. The
court was referred to the report of Dr. Gian Marus on page 30 of the
indexed bundle where the following is recorded:
"
THE ACCIDENT:
History
taken from Mr Mbele in English and also via the interpreter:
He remembers that he was
a
front seat passenger in
a
car being driven by his nephew. It was about
25 kilometres from Heilbron when he fell asleep. He then has no
memory of the accident.
He has a memory
of
being in an ambulance. He can remember
as
the ambulance went over bumps he had pain in
the left hip. He then has no memory of his initial hospitalization.
He then has some
memories of returning to the Heilbron Hospital in an
ambulance. He was told that he had been at the Pelonomi Hospital but
cannot
remember this."
[7] On page 42
of the paginated bundles of the papers the following is recorded:
"SUMMARY:
On account of the accident Mr. Mbele sustained the
following injuries:
1.
A concussive brain injury.
2.
Blunt chest injury with right haemothorax.
3.
Left acetabular fracture.
4.
Laceration left eyelid and lip.
ASSESSMENT:
1.
Pre-accident Condition:
No pre-accident neurological problems are noted.
2.
Accident Related Injuries:
2.1 Concussive Brain
Injury:"
[8] The report goes on to
comment that the Plaintiff lost amenities of normal living as
a
result of the accident. In the same report, the Plaintiffs hip
injuries are dealt with on page 32, where the following is stated:
"1.
Left Hip Pain:
He is aware of pain in the hip every day and if he
does not take pills for pain then he has difficulty in managing with
the pain.
It causes him to limp. He cannot walk far
-
more than
a
kilometre
otherwise the hip becomes painful. He is not able to run."
[9] The aspect regarding his
hip problem is dealt in details in a report compiled by Dr.
Anton H.
van den Bout on page 62 where the following is recorded:
"1. For the
patient's left hip fracture of the acetabulum with
a
total collapse of the hip joint space because
of avascular necrosis with no cartilage at all and shortening of the
leg, and therefore
a
grade
modifier for clinical investigation,
a
58
lower extremity impairment according to page 514 table 16-4 Class 4.
This 58% lower extremity impairment translates to
a
23% whole person impairment.
The patient now needs
a
total
hip replacement which will most likely be with
a
poor result because
of
the fact that the patient already has such
poor muscles with weakness of the hip as well as the thigh muscles,
although some rehab
will bring
some
strength
back, but that will bring the patient in the range of 67% lower
extremity impairment according to page 515 table 16-4 Class
4, which
would mean
a
27%
whole person impairment
and not the
30% of the RAF 4 report either."
[10] I was referred to the
evaluations of Dr. Lamprecht, Vogel & Partners which report
evaluated the nature of the injuries on the pelvis and the left hip
of the Plaintiff. I had regard to the report of the clinical
psychologist Rolien Hovsha. When one has regard to all the report I
have been referred to by counsel for the Plaintiff, I should
no doubt
accept in the Plaintiff's favour that he suffered head as well as hip
injuries as a result of the accident.
D
APPLICABLE LEGAL
PRINCIPLES
[11] I now have to determine the
aspect of general damages suffered by the Plaintiff. General
damages
account for pain and suffering, disability, disfigurement and loss of
amenities of life. In determining general damages
the court is called
upon to exercise it discretion to award what it considers to be fair
and adequate compensation having regards
to a broad spectrum of facts
and circumstances connected to the Plaintiff and the injuries
sustained by him including their nature,
permanence. Severity and the
impact on his life style.
"[18] In Sandler v Wholesale
Coal Supplies Ltd
1941 AD 194
at 199 the court. held:
"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"
"[19] That still remains the legal position.
There is no hard and fast rule of general application requiring
a
court.to consider past awards. Such awards are
seldom on all fours with the facts of the case under consideration.
(See Road Accident
Fund v Marunga
2003 (5) SA 165
(SCA)."
[12] I am mindful of the
caution in
De Jong v du Pisanie N.O.
2005 (5) SA 547
(SCA) at
paragraph 60 wherein the court, after noting the tendency towards
increased awards in respect of general damages in recent
times, was
readily perceptible and re-affirmed conservatism as one of the
multiple factors to be taken into account in awarding
damages. The
court concluded that the principle remained that the award should be
fair to both sides, it must give just compensation
to the plaintiff,
but not pour out largesse from the horn of plenty at the defendant's
expense, as pointed out in
Pitt v Economic insurance Co Ltd
1975
(3) SA 264
(N) at 267.
[13] The court has a wide
discretion to award what is fair and adequate compensation to the
injured party.
Past awards serve no more than to give some indication
or guidance as to what sort of awards are appropriate on the facts of
a
particular case.
[14] The Plaintiff is claiming
the amount of R1 200 000.00 in respect of general damages. Mr.
Nkhahle, counsel
for the Defendant tendered an amount of R300 000.00
as offer in respect of the general damages suffered by the Plaintiff
on behalf
of the Defendant. Mr. Els, counsel for the Plaintiff,
strenuously opposed this offer and asked the court to make an
equitable settlement
justifying the general damages suffered by the
Plaintiff.
[15] In my view the amount
suggested by the Defendant as offer to Plaintiff's injuries is not
reasonable.
The nature and extent of the Plaintiff's pain and
suffering and loss of amenities of life are well documented in the
medical reports
I have laboriously referred to herein above. I am
also satisfied that the Plaintiff longevity is not affected by his
injuries.
[16] Taking all these factors
into account, it is my considered view that a fair and just
compensation for
general damages for the Plaintiff is the amount of
R850 000.00.
E
ORDER
[17]
In the result I make the following order:
17.1 The Defendant concedes liability
and is therefore liable for 1OOo/o of the Plaintiff's proven
or
agreed damages in respect of the Plaintiff's damages suffered in a
motor vehicle collision on 02 March 2014.
17.2 The Defendant
pays the Plaintiff an amount of R369 529.52 for his proved or
agreed
damages.
17.3 The Defendant shall make
payment to the Plaintiff for compensation in respect of his general
damages in the amount of R850 000.00. (the capital amount referred to
in
17.2 and 17.3 shall be paid within 14 days of this
order).
17.4 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°/o
(One Hundred percentum)future accommodation in a hospital or nursing
home, or treatment or rendering
of a service, or supplying of goods
or related expenses as inter alia set out in the medico legal reports
delivered under the above
case number, in respect of injuries
sustained by the Plaintiff in the motor vehicle collision which
occurred on the 02nd of March
2014, after such costs have been
incurred and on proof thereof.
17.5 Payment of the capital
amount, costs, as well as any interest is to be made into the
following
account:-
Account name
:
Edeling
Van Niekerk Incorporated
Bank
: Nedbank
Branch
:
Business Westrand
Account number
: [….]
Branch code
:
128605
17.6 The Defendant shall pay interest a
tempore morae on the capital amount aforesaid at a rate of
10.25o/o
per annum from 14 (Fourteen) days after date of this order to date of
final payment;
17.7 The Defendant pays the Plaintiff's taxed
or agreed party and party costs on the High Court Scale inclusive
of
correspondent's fees which costs will inter alia include the
following:
17.7.1
The costs of Counsel (for 6 & 7 February 2018);
17.7.2
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 experts as
well as trial on 6 & 7 February 2018. The Plaintiff filed
the
following reports:
17.7.2.1
Dr. G Fredericks (General Practitioner);
17.7.2.2
Dr. G Marus (Neurosurgeon);
17.7.2.3
Dr. A.H. van den Bout (Orthopaedic Surgeon);
17.7.2.4
Ms. R Hovsh (Clinical Psychologist);
17.7.2.5
Dr. L.A. Fine (Psychiatrist);
17.7.2.6
Ms. A
Crosbie
(Occupational Therapist);
17.7.2.7
Ms. L Roets (Industrial Psychologist)
17.7.2.8
Mr. G.A. Whittaker (Actuary).
I.R.O
BOKWA, AJ
On behalf of the Plaintiff:
Adv: J Els
Instructed
by: McIntyre van der Post BLOEMFONTEIN
On
behalf of the Defendant:
Adv: Nkhahle
Instructed by: Maduba Attorneys BLOEMFONTEIN