Summary of Judgment

1. Introduction

This matter concerned an action for damages arising from bodily injuries sustained by the plaintiff, Ms A Opperman, in a motor vehicle collision. The defendant was the Road Accident Fund. By the time the matter was argued, the defendant had conceded the merits, with negligence and causation of the collision no longer in dispute, leaving only issues relating to the quantification of damages.

At the hearing, counsel informed the court that a curator ad litem had been appointed for Ms Opperman. By agreement, an application was moved for the substitution of the curator ad litem (reflecting Adv M van Rooyen N.O. acting on behalf of Ms Opperman), and this substitution was granted. An unopposed amendment to the particulars of claim was also moved and granted.

Most heads of damages had been resolved before the hearing. The parties had previously settled future medical and related expenditure (by way of a statutory undertaking) and past medical expenses, and they had also settled past and future loss of earnings and earning capacity shortly before argument. The only remaining dispute for determination was the quantum of general damages (non-patrimonial loss).

The general subject-matter of the dispute was therefore the appropriate assessment of general damages for severe neurological and functional sequelae following the collision, including whether a pre-existing medical condition (insulin-dependent diabetes) should reduce the award.

2. Material Facts

It was common cause that the action arose from a collision in which Ms Opperman sustained multiple serious injuries and subsequent neurological sequelae. The merits had been conceded, and the court proceeded on the basis that liability for proven damages was established, with the trial confined to outstanding quantification issues.

The court relied on expert reports and joint minutes, which were accepted as undisputed because the parties led no viva voce evidence and the experts recorded no disagreements in their joint minutes. On that basis, the injuries attributed to the collision were recorded as including a soft tissue hyperextension injury to the cervical spine, left carotid occlusion with a left middle cerebral artery infarct, vertebral artery injury with a right occipital lobe infarct, and bilateral foot drop.

The neurological disabilities accepted as accident-related included a cognitive disability with cognitive limitations and speech impediment (and limited insight), a risk of epilepsy (no seizures to date, but a future risk), visual impairment consistent with a left homonymous hemianopia, and motor impairment in the form of bilateral foot drop. The court also recorded that hearing impairment was present and was not disputed by the defendant.

A pre-existing condition was also common cause: prior to the collision Ms Opperman was an insulin-dependent diabetic. The disputed factual contention relevant to general damages concerned whether this pre-existing diabetes, allegedly poorly controlled, contributed materially to the neurological outcomes (including whether it could have been a trigger for the strokes), and whether it should therefore reduce the general damages award. The court resolved this dispute against the defendant, finding that the expert material did not support the submission that diabetes, rather than the collision, explained the strokes and related sequelae.

It was further common cause on the expert material that Ms Opperman’s post-collision functioning was severely impaired. The experts agreed that she would not be able to be employed, would not be able to attend to her own affairs or person, and would not be able to live independently. The need for a curator to assist was accepted as a likely consequence, though the court recorded that the curator ad litem intended to investigate and advise regarding any further appointment, and the court did not determine that issue as part of the judgment.

3. Legal Issues

The central legal question was the appropriate quantum of general damages for Ms Opperman’s injuries and sequelae, assessed against comparable awards and adjusted to achieve fairness between the parties.

Within that question, the court was required to determine whether Ms Opperman’s pre-existing insulin-dependent diabetes was causally relevant to the sequelae such that it should operate as a factor diminishing general damages. This component involved an application of law to fact, in the sense that the court had to decide whether the established expert evidence supported attributing the complained-of outcomes to the collision or to a pre-existing condition.

The quantification of general damages further required a value judgment. The court had to make a discretionary assessment of a fair award, guided by precedent and the principle that damages must be fair to both sides rather than punitive or overly generous.

4. Court’s Reasoning

The court proceeded from the premise that, because the merits had been conceded and the experts’ joint minutes reflected no disagreements, the injuries and sequelae described in the joint minutes formed the accepted factual basis for assessing general damages. The parties agreed that no oral evidence would be led and that argument would be conducted with reference to the expert material and selected comparable awards.

On the contested issue of the pre-existing diabetes, the defendant argued that the condition was not properly controlled and may have contributed to the sequelae, including potentially acting as a trigger for the strokes. The court rejected this submission because it was not supported by the defendant’s own expert evidence. The court emphasised that the relevant joint minutes were “clear and unequivocal” in attributing the neurological disabilities to the accident, and it relied additionally on a statement in Dr Flemming’s report (the defendant’s expert) suggesting that the possible contribution of diabetes was, in his view, effectively academic and had no practical effect on the merits. On that basis, the court found that the injuries and subsequent sequelae were related to the collision and not to the pre-existing diabetes.

Having found that diabetes did not causally explain the sequelae, the court held that the pre-existing condition was not a factor to be considered when deciding quantum for general damages. The assessment of general damages thus proceeded on the footing of the collision-related strokes and associated cognitive, visual, motor, and functional impairments.

In determining the appropriate amount, the court accepted the parties’ shared position that the injuries and sequelae had a severe impact on Ms Opperman’s life, including her inability to work, manage her own affairs, or live independently. The court then considered comparative authority placed before it. The plaintiff relied on an unreported decision, Scholtz v Road Accident Fund, as a guide to an award in the region of R1.4 million (adjusted from an award made in 2006). The defendant relied on Dlamini v Road Accident Fund (in which R1.35 million was awarded) and also referred to Adlem v Road Accident Fund and Radebe v Road Accident Fund, contending that those cases reflected more severe injuries and that a lower amount (R1 million) was appropriate.

The court noted a relative scarcity of reported authority closely aligned to the particular injuries and sequelae in issue. It nevertheless evaluated the comparators and rejected the defendant’s attempt to distinguish the present case by reference to the pre-existing diabetes, because the court had already found that the diabetes was not a relevant factor. The court further reasoned that, given the accepted consequences—most notably that Ms Opperman suffered two strokes due to collision-related injuries and would likely require curatorship assistance—there was no meaningful basis to treat the present injuries as less serious than those in the cases relied upon by the defendant. The court also referred to the caution in De Jong v Du Pisani N.O. 2005 (5) SA 457 (SCA) that an award must be fair to both parties and provide just compensation.

Balancing these considerations, and exercising the value judgment inherent in general damages, the court concluded that R1 300 000.00 constituted a fair and reasonable award for general damages.

5. Outcome and Relief

The court awarded damages in favour of the plaintiff (acting on behalf of Ms Opperman). General damages were determined at R1 300 000.00, and together with amounts already agreed between the parties (past medical expenses and loss of earnings), the court ordered payment of a total of R1 883 022.41 into the trust account of the plaintiff’s attorneys.

The court ordered the defendant to furnish an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 for future accommodation, treatment, services, or goods relating to the collision injuries, to be paid after such costs are incurred and on proof.

The defendant was ordered to pay the plaintiff’s party-and-party costs on the High Court scale, inclusive of both trial dates, including costs of senior-junior counsel, the qualifying/preparation fees and reports of the plaintiff’s noticed experts (or those in the defendant’s possession), specified travel expenses for the patient, and the costs of the curatrix ad litem (including court attendances, travel, and preparation of her report). The order also regulated taxation and the time periods for payment following agreement or taxation.

Cases Cited

De Jong v Du Pisani N.O. 2005 (5) SA 457 (SCA).

Corinne Nicola Scholtz v Road Accident Fund (Case No. 2001/21401, Witwatersrand Local Division, unreported judgment delivered in 2006 by Van Oosten J).

Bhekisisa Simon Dlamini v Road Accident Fund (Case No. 59188/13, Gauteng Division, Pretoria, unreported judgment delivered 3 September 2015 by Mali AJ).

Adlem v Road Accident Fund 2003(5) C & B J 2-41.

Radebe v Road Accident Fund (2013) (as referenced in argument; further citation details not provided in the judgment text).

Legislation Cited

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

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that Ms Opperman’s injuries and sequelae, including the strokes and resultant cognitive, visual, motor, and functional impairments, were caused by the collision and were not attributable to her pre-existing insulin-dependent diabetes. As a result, the pre-existing diabetes did not operate to reduce the quantum of general damages.

The court held further that a general damages award of R1 300 000.00 was fair and reasonable in light of the nature and seriousness of the injuries, their permanent and disabling sequelae, and the comparable authorities placed before the court. The court granted judgment for the total agreed and determined damages amount of R1 883 022.41, together with a statutory undertaking for future medical-related costs and an award of party-and-party costs on the High Court scale.

LEGAL PRINCIPLES

An award of general damages involves a discretionary evaluation aimed at achieving fairness to both parties, providing just compensation to the plaintiff while remaining fair to the defendant, consistent with the approach endorsed in De Jong v Du Pisani N.O. 2005 (5) SA 457 (SCA).

Where the quantification of damages is argued on expert reports and joint minutes, and the joint minutes reflect no disagreements, the court may accept the injuries and sequelae recorded there as the factual platform for determining quantum, especially where the parties elect not to lead viva voce evidence.

A pre-existing medical condition should not be treated as diminishing general damages where, on the accepted expert evidence, the relevant injuries and sequelae are found to be accident-related rather than attributable to the pre-existing condition.