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[2018] ZAFSHC 163
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NH v Road Accident Fund (2843/2016) [2018] ZAFSHC 163 (25 October 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: 2843/2016
In
the matter between:
N:
H
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
21 SEPTEMBER 2018
JUDGMENT
BY:
DANISO, AJ
DELIVERED
ON:
25 OCTOBER 2018
[1]
In this matter the defendant is being sued for damages the plaintiff
sustained as a result of being injured in a motor vehicle
accident
which took place on the 22
nd
December 2012.
[2]
The plaintiff was a passenger
in a vehicle with
registration numbers and letters
D[…]
FS
driven by
JC
Tuyishime
when it collided with
another vehicle bearing registration numbers and letters
C[…]
FS
.
[3]
It is common cause that as a result of the said collision, the
plaintiff sustained the following injuries: severe head injury,
occipital lacerations, bilateral femur fractures, lung and cardiac
contusion, left intertrochanteric femur fracture, abdominal
injuries
with mesenteric tear and avulsion of splenic blood supply, right
hemiplegia and multiple abrasions and lacerations.
[4]
The defendant has conceded the m
erits 100% of the plaintiff’s
proven or agreed damages. The
damages for past
and future medical expenses and past and future loss of income have
also been settled between the parties.
[5]
A written draft order in that regard was handed in by concurrence and
I will incorporate the agreed terms therein in my ensuing
order. See
Annexure “X”.
[6]
The only issue that I have to determine is the quantum pertaining to
general damages.
It was not in dispute that the plaintiff is
entitled to general damages, the parties are however in disagreement
with regard to
the amount of damages to be awarded.
[7]
By agreement between the parties, the plaintiff handed in the
joint minutes by the occupational therapists J Monson and S Moagi,
Industrial Psychologists, J van Zyl and M Kheswa and Orthopaedic
Surgeons Drs HET Van Den Bout and Moloto
.
[8]
All the experts confirm that the plaintiff will still require future
medical treatment and hospitalization.
8.1. At the time of the
accident the plaintiff was 46 years old, he enjoyed hunting with his
dogs and doing some gardening. The
orthopaedic injuries have
curtailed the enjoyment of his amenities in that he has constant
weakness of the limbs. He walks with
difficulty and very slowly. He
also can no longer stand on one leg and has a right sided limping
gait.
8.2. The accident has
also left him with permanent scars on the occipital area, the
diaphragm down to the pubic area, around the
belly button and
operations scars from the hips down to the knees on both legs and the
right upper arm. He also has bed sore scars
on the head and right
buttock.
8.3. The plaintiff has
been experiencing pains following the accident. The pains were
treated with Morphine, Pethidine and Tramal
Capsules while he was in
hospital.
8.4. The pain and
suffering is ongoing and there will be more pain and suffering in
future with the realization of operative procedures.
[9]
The plaintiff also adduced the evidence of
Dr HJ Edeling, a
neurosurgeon. He took the court through his report. The salient parts
of his evidence are the following:
9.1. The plaintiff’s
wife, Ms Ntsoaki Motaung, provided the information with regard to the
plaintiff’s status prior
to the accident. She reported that
before the accident the plaintiff was in good health with no
physical, mental or psychological
difficulties. He also had no
disabilities in relation to his work or amenities. She was not
present when the accident occurred
and she only found out about two
weeks after the accident that the plaintiff was injured and
hospitalized.
9.2. The plaintiff has no
recollection of the events prior, during and after the accident.
According to the hospital records he
was admitted at Dihlabeng
hospital on the day of the accident. He was fully conscious.
9.3. He spent about 2
months in the ICU and a month and 3 weeks in a general ward. During
that period he had numerous surgeries,
laparotomies for spleen
removal and bowel resection. He also had orthopaedic surgery to
repair the fractures of the femur.
9.4. For the most part of
his hospitalization he was in a critical condition. His condition was
exacerbated by respiratory and heart
complications.
9.5. He underwent blood
transfusions. He was placed on mechanical ventilation by way of
endotracheal tube and later tracheostomy
on several occasions.
9.6. It was only on 25
January 2013 that the plaintiff was fully awake, communicating well
and orientated. The plaintiff reported
that he experienced and still
suffers from pain in the stomach area, occasional headaches, back,
right upper arm and shoulder.
Dr Edeling informs that the pains will
persist in invariable degrees and for a long term in the future.
9.7. The brain injury is
the most severe dilapidating injury sustained by the plaintiff. It is
quiet so severe that it has rendered
the plaintiff both physically
and mentally disabled. As a consequence of the brain injury, the
plaintiff can no longer manage his
personal, financial and legal
affairs and he is also at risk of developing epilepsy.
9.8. In conclusion, Dr
Edeling confirmed that the plaintiff’s life expectancy should
be normal, provided, he receives the
necessary medical treatments,
support and care.
[10]
Thus was in short the evidence presented on behalf of the plaintiff.
No evidence was led from the defendant’s side.
[11]
The plaintiff’s evidence is thus uncontested and it is in that
regard that it was argued on behalf of the plaintiff that
the amount
that would be just and equitable under these circumstances would be
an amount of R1 300 000.00 (One million
three hundred
thousand rand). On the other side, it was the defendant’s
submission that the amount claimed by the plaintiff
is excessive, the
amount that would be fair is a sum of R500 000.00.
[12]
I was referred to
Mbele Dawid v Road Accident Fund
case number (4572/2015) by the plaintiff’s counsel. This matter
was decided in this division by Bokwa AJ. The plaintiff in
this
matter sustained brain and chest injuries, a fracture of the left
acetabular and laceration of the left eyelid and lip was
awarded
R850 000.00 as general damages. It was the submitted on the
plaintiff’s behalf that in this case the injuries
were much
lesser as compared to the present cases however the case can still be
used as a bench mark.
[13]
The determination for the award for general damages has never been an
easy task. There is neither a mathematical nor a scientific
formula
to compute the monetary value on pain and suffering, and loss of
amenities of life. See
A A Mutual Insurance Association Ltd v
Maqula
1978 (1) SA 805
(A).
[14]
The court retains a wide discretion when it determines what to award
as general damages.
There is no hard and fast rule of general
application requiring a court to consider past awards. Comparable
previous awards merely
serve as a guide as two cases can never be the
same,
each case must be treated on
its own unique facts.
[15]
Having regard to the entirety of the plaintiff’s undisputed
evidence, it can be
established that as a result of the
injuries the plaintiff suffered great pains. He is still in agony and
the pain will persist
for a long period in the future. His condition
past-morbid has rendered him totally depended on others for his daily
existence.
The multiple scars he has been left with bear testimony of
his body disfigurement and mutilation resulting from the surgical
removal
of his spleen and part of his bowels. The grim picture of the
plaintiff’s life post the injuries is indicated by the severe
brain injury which has rendered him both physically and mentally
impaired. Advocate
Herman Kriel has been
appointed as the plaintiff’s curator ad litem as a result.
[16]
It is the light of these circumstances that I’m of the view
that the amount suggested by the defendant will
not
be adequate to compensate the plaintiff for the injuries he suffered
and that the amount that would fair and equitable under these
circumstances is the amount of R1,100 000.00 (one million one hundred
thousand rand).
[17]
In the result I make the following order:
1.
The
draft order annexed hereto as annexure “X” is made an
order of court.
2.
The
defendant is to pay the plaintiff an amount of R1, 100 000.00 for
general damages.
_____________
DANISO,
AJ
APPEARANCES:
Counsel
on behalf of the plaintiff: Adv. Olivier
Instructed
by: McINTYRE & VAN DER POST
BLOEMFONTEIN
Counsel
on behalf of the defendant: Adv. Mopeli
Instructed
by: MADUBA ATTORNEYS
BLOEMFONTEIN