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[2016] ZAGPPHC 798
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Oosthuizen v Road Accident Fund (1663/2015) [2016] ZAGPPHC 798 (9 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO.:1663/2015
9/9/2016
Not reportable
Not of interest to other
judges
Revised.
In
the matter between:
OOSTHIZEN,
KJ
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
HUGHES
J:
[1]
In this matter the aspect of liability has been conceded by the
defendant granting 100% in favour of the plaintiff's proven
damages.
The defendant has provided an undertaking in terms of
section 17(4)
of the
Road Accident Fund Act 56 of 1996
allowing for 100% of this
head of the future medical expenses. By agreement the issue of past
and future loss of earnings is adjourned
sine die. The issue for
determination by this court is that of general damages.
[2]
This trial was initially scheduled for Tuesday 9 August 2016 however
no allocation was made until 12 August 2016. The parties
advised that
their argument would be based solely on the medical reports which
were filed in respect of general damages.
[3]
The plaintiff was 24 years of age when he was injured as a result of
a motor vehicle collision on 16 February 2014. The parties
have
agreed that the injuries sustained by the plaintiff and the sequelae
are as set out below:
3.1. Compression fracture
of the L3 vertebra. Resultant in pain in the lumber spinal area.
Chance of surgical treatment is a 60%
to 70%. The plaintiff will have
to undergo a lumber spinal fusion.
3.2. Soft tissue injury
to the right ankle with scarring and equinus deformity of the ankle.
The Plaintiff would benefit from surgery
to correct the scarring and
equinus.
3.3. Post concussive
syndrome, post-traumatic stress disorder, avoidant personality
disorder.
[4]
From the outset Adv Granova, for the plaintiff, pointed out that she
was instructed to persist with a claim of R700 000 for
compensation
in respect of general damages. To this end she proceeded to make
reference to a host of cases dealing with each individual
injury.
[5]
Adv Phahlamohlaka for the Defendant stressed that was not the correct
procedure to be adopted when one assesses a claimant with
various
injuries. He argued that the injuries should be looked at
cumulatively taking into account the cumulative effect of the
sequelae on the individual claimant.
[6]
The assessment of general damages is one that is reliant on looking
at awards in comparable cases and assessing the pattern
of such
awards over time. It was said in
Mpondo v The Road Accident Fund
2011 JDR 0708 (ECG):
"It
is not enough to compare the general nature of the injuries; all
factors affecting the assessment of damages must be taken
into
account. Once it is established that the circumstances are
sufficiently comparable, then such cases are to be used to provide
a
general yardstick to assist the court in arriving at an award 'not
substantially out of general accord with previous awards in
broadly
similar cases'."
[7]
On my assessment of the reports the orthopaedic surgeons, Dr Kumbirai
and Dr Tshitake, both document that the plaintiff suffered
acute
severe pain as a result of his injuries for about at least four weeks
after the accident then moderate pain thereafter. They
concur that
the back pain experienced by the plaintiff is as a result of the
compression fracture sustained and that he will in
all likelihood
experience such pain for the remainder of his life. The orthopaedic
surgeons further concur that it would be beneficial
for the Plaintiff
to have conservative treatment in the form of analgesic and
non-steroidal anti-inflammatory medication. The eventuality
was that
he would require a lumbar spinal fusion to correct and prevent
kyphotic deformity progression, relieve pain and improve
his quality
of life. The soft tissue injury of the right ankle is not so eventful
as it has healed satisfactory and there was an
unlikelihood of future
surgical procedures, but for, the scarring and the equinus. The
benefit would be bracing of the right ankle
to improve the bio -
mechanics of the lower limb and correcting the deformity.
[8]
Dr. Mabaso, the clinical psychologist makes a finding that the
plaintiff's headaches are as a result of the mild brain injury
which
he suffered, (difficulty thinking, memory problems and frustration).
The good doctor typifies this as post concussive syndrome,
with
post-traumatic stress disorder and avoidant personality disorder.
[9]
I am mindful of the fact that the only dispute between the parties
lies with the amount to be awarded to the plaintiff for general
damages. I take heed of the warning provided by Holmes R in
Pitt v
Economic Insurance
Co
Ltd
1957 (3) SA 284
at
C, where he
stated:
"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".
Together
with that stated by Eksteen J in
Ambrose v Road Accident Fund
2011(6C4) QOD 13 (ECP) at [48]:
"General
damages: In assessing an award for general damages the court has a
broad discretion to award what it considers to
be fair and adequate
compensation. The court will generally be guided by awards previously
made in comparable cases and will be
alive to the tendency for awards
to be higher in recent years than was previously the case. (Compare
De Jongh v Du Paisanie NO
2005 (5) SA 457
(SCA) 457D-E).
In
considering previous awards it is appropriate to have regard to the
depreciating value of money due to the ravages of inflation.
It would
however be inappropriate to escalate such awards by a slavish
application of the consumer price index. (See
AA Onderlinge
Assuransie Assosiasie Bpk v Sodoms
1980 (3) SA 134
(A).) "
[10]
As I indicated above I was referred to a host of cases by both
counsel, especially so by Ms Granova who painstakingly attributed
a
number of cases for each of the three injuries and their sequelae. I
do not intend to go through an analysis of all these cases
save to
say that I have had regard to the facts of these cases, the awards
made then and the award in current terms. In fairness
to both
plaintiff and defendant I do not intend to go contra to that
suggested in
Pitt supra.
In my assessment a fair amount to be
allocated for the injuries of the plaintiff is an amount of.R550
000.00.
[11]
Consequently the following order is made:
11.1. The defendant, the
Road Accident Fund, shall pay the plaintiff, Kegan Jermaine
Oosthuizen, the sum of R550 000.00 in respect
of general damages.
11.2. The order annexed
as "X" is made an order of court.
________________________
W.
Hughes
Judge
of the High Court
Appearances:
For
the Plaintiff: Adv. A. Granova
Instructed
by:
Jacobus Attorneys
For
the Defendant: Adv. K. Phahlamohlaka
Instructed
by:
Mathipe Tsebane Attorneys
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
On
this the 9 September 2016
Before
the Honourable Justice Hughes
CASE
NO.: 1663/2015
In
the matter between:
OOSTHUIZEN,
KJ
Plaintiff
-&-
THE
ROAD ACCIDENT
FUND
Defendant
ORDER
By
agreement between the parties, it is ordered that:
1.1. The Defendant is to
pay to the Plaintiff the sum of
R550 000.00 (five
hundred and fifty thousand rands only) in respect of general damages
only ("the capital sum") within
14 days from date of this
order. ("the payment date") into the Plaintiff's attorney's
trust banking account (Jacobus
Attorneys Trust Account) of the
Plaintiff's attorney (account number …) with branch no (branch
code 010045) of the Standard
Bank of South Africa, Reference number:
AB Jacobus/A01170;
1.2. Interest on
the capital sum at the prescribed
rate of 10.25% per
annum, calculated:
1.2.1.
from the date following the payment date;
1.2.2.
to the date of final payment,
in
the event of the Defendant failing to effect payment of the capital
sum by the payment date;
1.3. The Plaintiff's
taxed (or agreed) party and party costs for both trial dates being on
2 and 12 August 2016:
1.3.1.
Including (but not limited to) the costs of all the Plaintiff's
expert reports (and addendums thereto, if any), joint minutes
as well
as reservation and/or preparation fees, if any;
1.3.2.
The Plaintiff's experts included but not limited to:
1.3.2.1. Dr LF Mabasa;
1.3.2.2. Dr PT Kumbirai;
1.3.2.3. Ms Frizelna
Steyn;
1.3.2.4. Dr K Ramjee;
1.3.2.5. Frizelna Steyn;
1.3.2.6. Prof PL
Lekgwara;
1.3.2.7. GRS Actuaries.
1.4. Costs of Plaintiff's
Senior-Junior Counsel at full rate as well as reasonable costs for
plaintiff's attorney in respect of
settlement negotiations for both
trial dates on 02 & 12 August 2016 as well as copies and
preparation for defendant's trial
bundle.
1.5. The travel costs and
time for conveying plaintiff to defendant's expert assessments in
terms of defendant's Rule 36 notices.
1.6. Plaintiff's costs
for preparing and copies of the trial bundles.
1.7. The Plaintiff shall:
1.7.1. serve the Notice
of Taxation on the Defendant's attorneys of record, in the event that
such costs are not agreed;
1.7.2. allow the
Defendant ten (10) court days to make payment of the taxed costs, by
electronic fund transfer into the trust
banking account
(Jacobus Attorneys Trust Account) of the Plaintiff's attorney
(account number …) with branch no (branch
code 010045)
of the Standard Bank of South Africa, Reference number:
Jacobus/AOll70;
2.
The Defendant is to furnish the Plaintiff with an undertaking as
envisaged in
Section 17(4)(a)
of the
Road Accident Fund Act, No. 56
of 1996
, as amended, to the effect that the Defendant shall
compensate the Plaintiff in respect of 100% of the costs of:
2.1. the future
accommodation of the Plaintiff in a
hospital or nursing
home;
2.2. the treatment of the
Plaintiff;
2.3. the rendering of a
service to the Plaintiff; and
2.4. the supplying of
goods to the Plaintiff,
after
such costs have been incurred and on proof thereof, arising from the
injuries sustained by the Plaintiff, which forms the
subject matter
of this action.
3.
The issue of quantum to be postponed
sine die.
BY
ORDER
REGISTRAR