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[2016] ZAGPPHC 1186
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Gianni v Road Accident Fund (54221/2014) [2016] ZAGPPHC 1186 (27 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
54221/2014
27/10/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ADVOCATE D.S
GIANNI PLAINTIFF
o.b.o
O. S.
and
ROAD ACCIDENTFUND
DEFENDANT
JUDGMENT
MALI
J
[1]
Advocate D.S. Gianni was appointed
curatrix ad litem
to the
minor child, O. S. ("the minor''). On 16 July 2010 when the
minor was 4 (four) and half year of age he got injured in
a car
accident. The accident was as a result of the collision that occurred
between a motor vehicle driven by the insured driver.
At the time of
the accident the minor was in the company of his mother who passed
away in the same accident.
[2]
The defendant is an entity established in terms of the Road Accident
Fund Act No 56 of 1996, ("the Act'') and which is
liable for
compensation of victims of motor-vehicle accident for personal
injuries sustained from such accidents.
[3]
The only issue for determination is the amount to be awarded for
general damages and the question of costs of the action, including
the costs reserved on 5 February 2016 when the trial was postponed.
GENERAL
DAMAGES
[4] The parties agreed
that no oral evidence was to be led, and that the issue in dispute
was to be determined by the court solely
on the evidence contained in
various experts reports filed by the plaintiff. The defendant did not
file any medico-legal reports.
[5]
It is common cause that the minor suffered the following injuries:
5.1 Abrasion to his
forehead;
5.2 A large laceration to
his scalp in the right parietal area, and a second scalp laceration
in the occipital area;
5.3 Perforation of his
tympanic membrane, with bleeding from his right ear;
5.4 A fracture of the
base of his scalp.
5.5 Further fractures to
the base of his skull in the anterior and middle cranial fossae
areas;
5.6 A haemorrhagic
contusion in the left temporal lobe of his brain;
5.7 A fracture of the
temporal squama on the right;
5.8 A peri-orbital
haematoma on the left.
[6]
According to the particulars of claim, as a result of the aforesaid
injuries and the
sequelae
thereof, the minor
6.1 Was temporarily /
totally disabled and thereafter permanently/ partially disabled;
6.2 Suffered loss of
earnings and will in the future continue to suffer loss of earnings
and/ or earning capacity;
6.3 Experienced pain,
suffering and discomfort.
[7]
As a result of the above injuries and the subsequent
sequalae
the
plaintiff claims an amount of R1,4 million in general damages on
behalf of the minor child. The defendant contends that an amount
of
R600 000.00 is a fair award in the circumstances.
[8]
It is trite law that the amount to be awarded on general damages can
only be determined by the broadest considerations and the
figure
arrived at must necessarily be uncertain, depending upon the judge’s
view of what is fair in all the circumstances.
[9]
In
PROTEA INSURANCE COMPANY v LAMB
1971 (1) SA 530
(A) at
534H
and
ROAD ACCIDENT FUND V MARUNGA 2003(5) SA 164 (SCA) at
23,
it is stated that a claim of general damages comprise pain
and suffering, disfigurement, permanent disability and loss of
amenities
of life.
[10]
It is not in dispute that by all accounts the minor's developmental
history was normal and he did not experience any medical
problems
prior to the accident. At the time of the accident he was in Grade R
at a creche. Subsequently the patient commenced his
primary schooling
and this has been characterised by poor academic performance, with
him consistently failing and moving onto following
grades by way of
condoned passes.
[11]
According to the report of the Neuropsychologist, Dr Maluleke at page
125 at 5.4.2 the following observations are made:
"O. was
a
four years old pre-grade scholar (Grade R) at the time of the
accident. He did not return to school for the rest of the year
recuperating
at home without any form of stimulation because he was
still lethargic. On his return to school in January 2010 he was
placed in
Grade 1. There were complaints that he was playful and did
not listen to his teacher's instructions. He could not cope with the
demands of his school programme and was incompetent. He failed Grade
1 and during his second attempt of Grade 1, he was uncooperative
and
could not follow his teacher's instructions when writing exercises.
His performance in Maths was dismal. He failed grade 1
again, but was
condoned to the next class. His school performance remained poor in
2012 and his parents were advised to support
and assist him with his
schoolwork. He was promoted to the next class at the end of the year.
Despite being assisted by his family,
his performance remains poor.
He can neither recall nor retain information taught at school.
Despite his current placement in Grade
3 being the third attempt he
has failed his Third Term Exams. He has ambition of pursuing a career
in policing."
[12] According to the
neurosurgeon, Dr Du Plessis, the injury to the minor's brain and
focal brain has compounded effect of the
diffuse brain injury which
constitutes a "significant brain injury". This implies
permanent brain damage with devastating
effects in multiple areas.
[13]
Dr Berkowitz
,
a plastic and reconstructive surgeon concludes
as follows:
'This little boy
sustained
a
major head injury involving
a
scalp
laceration,
a
cerebral contusion, a fracture of the right
mastoid process and
a
rupture of the right tympanic membrane.
The patient has reached Maximum Medical Improvement. The patient has
been left with serious,
permanent disfigurements of his scalp
as
a
result
of
this accident. The writer reserves the right to
amend this report should any further relevant information come to
light"
Dr Berkowitz further
reported that the scars caused by the permanent disfigurements of his
scalp are amenable to improvement by
means of surgical revision. The
surgical revision will entail hospitalisation of 3 to 4 days and will
have further moderate pain
and discomfort for a further five to seven
days.
[14]
The plaintiff's counsel referred to the case of
SEME v ROAD
ACCIDENT FUND 2008 (5) A4
in support of an award of R1,4 million.
In Seme, the court awarded the plaintiff a 36 year old then who
suffered a brain injury
a sum of R1000 000 for general damages. The
said updated is equivalent to R1, 700 000.00.
[15]
Ms Nodada, Counsel for the defendant's contention is that the minor
sustained a moderate concussive brain injury and there
is no evidence
that the plaintiff sustained a brain damage and othorpaedic injuries
as a result of the accident. The minor can
still manage to do certain
things in life. The Counsel's argument is based on the report of the
Neuropyschologist, Dr Maluleke.
At page 127 of Dr Maluleke's report
second paragraph of 5.5.2 the following is stated:
"
He can
distinguish money and co-operates when sent on shopping errands. He
cannot recall
a
single item and uses
a
shopping list.
His chores include washing dishes and helping with tending the goats
which he counts and safely puts in the kraal.
He is woken up by his
grandmother at 05:45 and can live independent of his family. He has
one friend who he relates well with although
he occasionally chases
him away for no apparent reason. He has good relationships with his
family.
[16]
Counsel for the defendant referred to case law, notably are the
following cases:
15.1 In
Nanile v
Minister of Posts and Telecommunications (1990) 4 QOD A4-30
(E),
a 3 year old boy sustained brained damage. He sustained a compound
fracture of the skull in the left frontal area. Massive
membrane and
haematoma ·revealed by CT scan some 8 months after initial
surgery to drain the haemorrhage. Both hemispheres
of brain
compromised inhibiting physical movement, spastic hemiparesis with
gross ataxia of right upper limb which was of little
practical use to
him, no prospect of recovery, intellectual impairment with depletion
of cognitive function; compromised vision;
30-50% risk of epilepsy,
and he is no longer educable nor will he gain meaningful employment.
The court awarded an amount of R35
000, which currently amounts to
R202 000.00
15.2 In
Zinto v SA
Mutual Fire
&
General Insurance 1970 2 C&B 6 B4
a
boy of 4 years and 7 months sustained a permanent brain damage. Left
arm and leg - paresis; residual weakness and clumsiness thereof
with
a degree of imbalance;
small mental deterioration
(my
underlining); personality, play and behaviour affected. The court
awarded an amount of R9000.00 which presently amounts to R567
000.00
[17]
All the expert's reports in support of Dr Du Plessis report are
indicative of brain damage. The injuries sustained and
sequelae
of
the minor have been fully set out above. They are undoubtedly
serious. The weight of the experts' evidence is supportive of brain
damage which has impacted severely in loss of amenities of life. Dr
Du Plessis' report at page 9 paragraph 3 reads:
"The accident has
been
a
watershed event in his life due to the neurocognitive
and possible neuro physical sequelae of the accident and the fact
that he
has lost his mother in the accident. He qualifies for
compensation for general damages based on paragraphs 5.1, 5.2 and
5.3
of the narrative test"
[18]
In
casu
the nature and the extent of the minor's pain and
suffering as well as loss of amenities of life are well documented in
various
experts reports; for example at page 136, paragraph 7.5 of Dr
Maluleke's report the following observations are made:
"He is currently
battling to learn at elementary level. The learning disabilities will
increase with increasing age and demands
and he is likely to end up
specialised education system for skills training. His employability
has been severely (sic). Advanced
activities of daily living have
serious compromised (sic)."
[19]
The minor's mental capability functions are heavily impacted due to
the gross impairment of the brain. It is apparent that
the minor's
accident has caused emotional, physical and psychological
sequelae.
It is common cause that he is unemployable in the labour market
in future.
[20]
I have considered various comparable cases including
MEGALINE V
ROAD ACCIDENT FUND
[2007] 3 ALL SA 531
(W)
(“Megaline”).
In Megaline an 11 year old boy who suffered profound neurological
impairments and prominent irreversible
disfigurement
was awarded
R1000.000 in general damages. The said amount currently updated
is R1, 700 000.00. I have also taken into account the sound warning
in
DE JONG v DU PISANIE N.O.
2006( 6) SA 547
(SCA)
at
paragraph 60 wherein the court having noted the tendency towards
increased awards in respect of general damages, 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.
[21]
Having regard to the above I find that an amount of R1 000 000.00 is
a fair award to both parties.
COSTS OF 5 FEBRUARY 2016
[22]
At the hearing of the case I was informed that the matter was
initially set down for hearing on 5 February 2016. Prior to that,
however, the defendant conceded the question of liability. On 5
February 2016, at the trial of the matter, the defendant objected
to
the late receipt of certain reports filed by the plaintiff and as a
result the trial was postponed and costs were reserved.
[23]
The trial was once again enrolled for hearing on 24 May 2016. After
the commencement of the trial the parties reached agreement
on the
amount of loss of earnings at R4, 356104,80 and the undertaking in
respect of future medical , hospital and related expenses.
[24]
In respect of future medical, hospital and related expenses it was
agreed that the defendant would furnish the plaintiff with
a suitably
worded written undertaking in terms of section 17 (4) (a) of the Act,
which merely reinforced a prior agreement in this
regard; and in
order to dramatically curtail the trial proceedings the parties
reached a further agreement in terms of which the
defendant admitted
the correctness of the contents of all the expert reports filed on
behalf of the plaintiff, including the joint
minutes.
[25]
The defendant was in possession of the reports for a period of 8
(eight) days although the reports were late by two days. The
defendant could not show how it was prejudiced with a two day
difference to make its decision. It is apparent from the above that
the defendant's objection to the late receipt of certain expert
reports which resulted to the postponement of the trial has no
merits. The defendant is therefore liable for the costs of 5 February
2016.
[26]
In the result the following order is issued.
26.1 The curatrix ad
litem, Adv D S Gianni, is granted permission to settle the claim in
respect of O. S.
26.2 The defendant is to
pay the plaintiff the amount of RS 356 104,80 directly into the trust
account of Messrs
.
Savage, Jooste and Adams, being:
Savage, Jooste and Adams
Attorneys,
Bank: NEDCOR - ARCADIA
Branch Code: 16-33-45-07
Account Number: [...]
Ref: MR MAKOLE/KB20
25.2.1 the defendant will
not be held liable for any interest on the said payments on condition
that the payments are made timeously.
25.2.2 in the event of
the default of the defendant, interest will be payable on the full
amount owing at that at the rate of 15.5
% per annum as provided for
in
section 17(3)(a)
of the
Road Accident Fund Act 56 of 1996
.
26.3
The award as pertaining to the minor shall be protected by means of
the appointment of a Curator Bonis, to be appointed in
the motion
court, under the abovementioned case number.
26.4
The award will be kept in an interest bearing account of the
plaintiff's attorney of record, until the Curator Bonis' appointment
26.5
The defendant is ordered to pay the plaintiff's party and party costs
of the action, on a High Court scale, (including 5 February
2016, 24
May 2016 and 25 May 2016) which costs shall include:
25.5.1 the appointment of
the Curator Bonis;
25.5.2 the costs of the
following expert reports which are in the possession of the defendant
and of which Notice in terms of the
Rules has been given, (including
the costs of the reports, addenda, RAF4 Serious Assessment Reports,
joint minutes, the preparation,
reservation and qualifying fees of
the experts) as the Taxing Master may, upon taxation, determine:
25.5.2.1 Dr JJ du Plessis
25.5.2.2 Dr P Engelbrecht
25.5.2.3 Dr Berkowitz
25.5.2.4 Dr JS Enslin
25.5.2.5 Dr Mazabow
25.5.2.6 Ms Maluleka
25.5.2.7 Dr Matlala
25.5.2.8 Ms Mokgata
25.5.2.9 Ms Greeff
25.5.2.10 Mr Moodie
25.5.2.11 Algorithm
Consultants and Actuaries;
and
25.5.2.12 Archer and Mann
Audiologists
25.5.3 the traveling and
accommodation costs of the minor and Ms Balibi for attending the
medico-legal appointments;
25.5.4 the traveling and
accommodation costs of the minor, Ms Lenoge and Ms Balibi for
attending Court on 5 February 2016, 24 May
2016 and 25 May 2016
25.5.5 the costs of the
application for the appointment of the Curatrix Ad Litem;
25.5.6 the costs of the
Curatrix Ad Litem, including her attendance at court and the drafting
of the report;
25.5.7 the costs of
Senior Counsel.
26.6
The party and party costs are payable within 14 days after receipt by
the defendanf s attorney of the stamped allocator, where
after
interest will be charged the appropriate rate per annum from date of
the stamped allocator to date of payment.
------------------------------------
N.
P. MALI
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff: G W Alberts SC
Instructed
by: SAVAGE JOOSTE &ADAMS INC
Counsel
for the Defendant: B Nodada
Instructed
by:TAU PHALANE INC
Date
of hearing: 25 May 2016
Date
of Judgment: 27 October 2016