Brief Summary

Damages — Road Accident Fund — Claim for general damages — Plaintiff sustained head injury in motor vehicle collision — Defendant conceded merits and agreed to settlement for loss of earnings — Court tasked with determining quantum of general damages — Expert reports presented differing views on severity of head injury — Court found that a fair and just amount for general damages was R600,000.00, taking into account the injuries sustained and comparable case law.

Comprehensive Summary

Summary of Judgment

Introduction

This matter was a delictual damages action instituted in the High Court of South Africa (Gauteng Division, Pretoria) against the Road Accident Fund in terms of the Road Accident Fund Act 56 of 1996 (as amended). The plaintiff, Ms Pretty Khabo Tlou, claimed compensation arising from injuries sustained in a motor vehicle collision.

The defendant was The Road Accident Fund. Due to the plaintiff’s circumstances, Advocate A P J Bouwer was appointed as curator ad litem to represent her interests in the litigation.

The collision occurred on 26 March 2006. The action proceeded under case number 17225/2011, and the trial was heard on 5 October 2015, with judgment delivered on 25 January 2016. By the time the matter came to trial, the defendant had conceded the merits in full, and the parties had settled the claim for loss of earnings and/or earning capacity. The only outstanding issue for determination was the quantum of general damages.

The dispute therefore concerned the appropriate monetary award for non-patrimonial loss (general damages) in circumstances where expert opinions differed on the severity of the head injury and the extent to which the plaintiff’s neurocognitive sequelae were attributable to the accident.

Material Facts

On 26 March 2006 at Witbank, the plaintiff was involved in a motor vehicle collision while she was a passenger. She sustained injuries recorded by the court as including a head injury with loss of consciousness, a laceration above the right eye, an injury to the right shoulder, and soft tissue injuries to the right knee and ankle. The plaintiff was 25 years old at the time of the accident.

By the time of trial, certain matters were not in dispute. The defendant had conceded liability (merits) so that the plaintiff was entitled to 100% of her proven or agreed damages. The parties also agreed that the claim for loss of earnings or earning capacity had been settled in the amount of R375 448.00 (although the final order records a rectified amount of R375’446.00), and that the defendant would furnish an undertaking under section 17(4)(a) of the Act.

The adjudication of general damages proceeded on a defined evidentiary basis. The parties agreed that no viva voce evidence would be led, and that the expert reports in the admitted bundles would serve as the evidentiary foundation for the determination of general damages.

There was a dispute (addressed by the court) regarding the severity classification of the head injury and the causal relationship between the accident and various reported sequelae. The neurosurgeon’s report characterised the head injury as mild, whereas the clinical psychologist expressed the view that, judged by the sequelae, the plaintiff’s injury should be considered moderate to severe. The defendant also raised the point that the plaintiff had experienced learning difficulty prior to the accident, suggesting that not all cognitive sequelae could be accident-related.

The court distinguished certain complaints as not supported on the accepted medical material. It recorded that, although the plaintiff complained of epistaxis, the neurologist (Dr Landman) concluded that the epistaxis was not accident-related. The court also noted there was no medical basis in the reports for the epileptic symptoms complained of, as neither the neurosurgeon nor the neurologist mentioned such symptoms.

Notwithstanding the dispute about severity classification, the court accepted from the clinical psychologist (Ms S C Strijdom) and psychiatrist (Dr T A S Melapi) reports that the plaintiff suffered, and would continue to suffer, from severe cognitive impairment. The court further accepted that, although it could not be stated with certainty that the impairment was wholly caused by the accident, it was probable that the accident aggravated a pre-morbid cognitive impairment.

Legal Issues

The central issue was the assessment of general damages, specifically what amount would constitute a fair and adequate award for the plaintiff’s pain and suffering, disability, and loss of amenities of life, on the facts established through the expert reports.

Embedded within this assessment were questions involving the application of legal principles to medical facts and an ultimately discretionary value judgment. The court had to evaluate competing expert characterisations of the head injury’s severity (mild versus moderate-to-severe as inferred from sequelae), determine which sequelae were properly attributable to the accident, and decide the weight to be given to comparable awards in prior cases.

The matter thus did not turn on the interpretation of the statute or a pure question of law. It turned principally on the judicial discretion inherent in quantifying general damages, informed by medical evidence and comparative case guidance.

Court’s Reasoning

The court approached the quantification of general damages by reaffirming established principles that general damages are not susceptible to mathematical or scientific calculation. In doing so, it referred to authority recognising that the assessment is inherently difficult because there is no formula that translates pain, suffering, disability, and loss of amenities into money.

The court emphasised that it possesses a wide discretion to award what it considers fair and adequate compensation. This discretion may be guided by previous awards in comparable cases, but the court also stressed that comparators are not to be applied rigidly, because no two cases are identical and the determination requires a measure of adjudicative judgment. The assessment must also be fair to both parties, namely the plaintiff and the Road Accident Fund.

On the medical dimension, the court confronted the divergence between the neurosurgeon’s characterisation of a mild head injury and the clinical psychologist’s inference of a moderate to severe injury based on sequelae. In resolving this, the court stated it would defer to the neurosurgeon on the severity of the head injury, on the basis that the neurosurgeon was the expert “in that field”. The court also took care to identify and exclude certain complaints from contributing to the quantum where they were not shown on the accepted medical evidence to be accident-related or medically supported. It specifically recorded that epistaxis was concluded by the neurologist to be not accident related, and it found no medical basis for the asserted epileptic symptoms because they were not reflected in the neurosurgeon’s or neurologist’s reports.

At the same time, the court recognised that the reports of the clinical psychologist and psychiatrist showed that the plaintiff suffered from severe cognitive impairment that would likely continue. While acknowledging evidentiary uncertainty as to whether the cognitive impairment was wholly attributable to the accident, the court found it probable that the accident aggravated the plaintiff’s pre-morbid cognitive impairment. This probability finding, drawn from the expert materials, functioned as a key bridge between the mild head injury classification and the significant ongoing neurocognitive impact claimed.

In calibrating the award, the court considered the parties’ submissions on comparable awards. The plaintiff sought an amount in the region of R800 000.00, relying primarily on selected comparable matters. The defendant contended that the plaintiff’s asserted severity was insufficiently supported beyond the clinical psychologist’s report, and argued for a range of R300 000.00 to R350 000.00, also disputing the comparability of the plaintiff’s authorities.

The court then expressly considered additional case law, including Combrinck v Padongelukkefonds and Madan NO v Road Accident Fund, and noted that in those matters the plaintiffs sustained severe brain injuries with neurocognitive and neuropsychological sequelae “almost similar” to the plaintiff’s sequelae. The court referred to the historic awards and their “current monetary value” (as placed before it), being R413 000.00 for Combrinck and R435 000.00 for Madan. Against this landscape, and taking into account the injuries and sequelae, the expert reports filed, comparable case law, and argument, the court concluded that R600 000.00 would represent a fair and just amount for general damages.

Finally, the court recorded that the parties had prepared and agreed on a draft order subject to the court’s determination of general damages, and that the judgment amount was inserted in the order (with a minor rectification to the loss of income/earning capacity figure).

Outcome and Relief

The court made the agreed (amended) draft order an order of court and determined the outstanding general damages issue in favour of the plaintiff by awarding R600 000.00 as general damages.

The defendant was ordered to pay the plaintiff R600 000.00 for general damages and R375’446.00 for loss of income and/or earning capacity (as recorded in the order), with both sums payable into the trust account of the plaintiff’s attorneys. The order further directed the plaintiff’s attorney to pay the amounts into an interest-bearing account pending the appointment of a curator bonis, and authorised investment and the use of funds for necessary expenses on behalf of the patient.

The defendant was also ordered to furnish an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 to pay 100% of the plaintiff’s future medical-related costs as specified in the order, after such costs are incurred and upon proof.

As to costs, the defendant was ordered to pay the plaintiff’s party-and-party costs on the High Court scale up to the date of the order, including (as specified) costs relating to medico-legal and actuarial reports, qualifying and reservation fees (and attendances if any) for listed experts, preparation of trial bundles, counsel’s costs, and costs associated with the appointment of the curator ad litem.

The order included interest provisions at 9% per annum if the defendant failed to pay the capital amounts within 14 days, and similarly for costs if not paid within 14 days after taxation or settlement, as detailed in the order.

Cases Cited

Torres v Road Accident Fund 2010 (6A4) QOD 1 (GSJ).

Myhill obo RC Penga v Road Accident Fund 2008 (5B4) QOD 271 (T).

Smith v Road Accident Fund 2013 (6A4) QOD 188 (GNP).

Matthys v Road Accident Fund 2013 (6A4) QOD 272 (GNP).

A A Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A).

Road Accident Fund v Guedes 2006 (5) SA 583 (SCA).

Van Dyk v Road Accident Fund 2003 (5E8) QOD 1 (AF).

Road Accident Fund v Marunga 2003 (5) SA 165 (SCA).

Pitt v Economic Insurance Company Limited 1975 (3) SA 284 (N).

Dikoko v Mokhatla 2007 (1) BCLR 1 (CC).

Combrinck v Padongelukkefonds 2001 (5B4) QOD 81 (W).

Madan NO v Road Accident Fund 2012 (6A4) QOD 123 (GSJ).

Legislation Cited

Road Accident Fund Act 56 of 1996 (as amended), including section 17(4)(a).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The defendant’s concession on the merits established the plaintiff’s entitlement to 100% of her proven or agreed damages. The parties’ settlement resolved the claim for loss of earnings/earning capacity and included agreement on an undertaking under section 17(4)(a) of the Road Accident Fund Act.

The only issue determined by the court was the appropriate award for general damages. Having deferred to the neurosurgeon’s classification of a mild head injury, excluded certain complaints (epistaxis as not accident-related, and epileptic symptoms as unsupported), and accepted evidence of ongoing severe cognitive impairment with probable aggravation of pre-morbid impairment, the court exercised its discretion to award R600 000.00 for general damages.

The court made an order reflecting payment of the capital amounts, delivery of the statutory undertaking, and payment of costs (including specified expert and curator-related costs), together with interest provisions for late payment.

LEGAL PRINCIPLES

General damages for pain and suffering, disability, and loss of amenities are not capable of precise calculation by a formula; the assessment is inherently discretionary and evaluative, requiring the court to determine what is fair and adequate compensation on the particular facts.

In exercising the discretion to quantify general damages, a court may be guided by awards in comparable cases, but such comparisons are not mechanically applied because each case turns on its own facts and circumstances, and no two cases are identical.

The determination of general damages must be fair to both parties, requiring a balanced assessment that avoids overcompensation and undercompensation, taking into account the nature of the injuries, the sequelae, the quality and limitations of the medical evidence, and the overall impact on the claimant’s life.

Where expert opinions differ on matters within specialised domains, the court may prefer the opinion of the expert whose expertise most directly addresses the contested question (for example, deference to a neurosurgeon on the severity classification of a head injury), while still considering other expert evidence on functional sequelae and psychological impact.

Tlou v Road Accident Fund (17225/2011) [2016] ZAGPPHC 31 (25 January 2016)