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[2015] ZAGPPHC 31
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Ramolobeng v Lowveld Bus Services (Pty) Ltd and Another (29836/09) [2015] ZAGPPHC 31 (3 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH PROVINCIAL DIVISION
DATE: 3 February
2015
CASE NO: 29836/09
Not reportable
Not of interest to
other judges
In the matter
between:
MATSOBANE HENDRIK
RAMOLOBENG
....................................................................
Plaintiff
and
LOWVELD BUS
SERVICES (PTY)
LTD
...........................................................
First
Defendant
TA
MABOTJA
....................................................................................................
Second
Defendant
JUDGMENT
HASSIM AJ
[1] On 5 October
2006 a bus driven by the second plaintiff in the course and within
the scope of his employment with the first defendant,
was involved in
a motor vehicle collision. The plaintiff, a young man then aged 34,
was a passenger thereon. The Road Accident
Fund compensated the
plaintiff to the extent of its statutory liability. The plaintiff now
seeks from the defendants under the
common law, compensation for
injuries suffered by him in the collision.
[2] The plaintiffs
claim for loss of earnings as well as that for future medical
expenses have been settled. The only outstanding
issue is the quantum
of general damages payable to the plaintiff.
[3]
The parties decided not to lead
viva
voce
evidence
but rather to present the case as what counsel referred to as an
“informal stated case”. The contents of the
medical
reports of the respective parties various expert witnesses were
largely common cause. Counsel, assured me that the facts
in those
portions of the reports referred to in argument were indeed common
cause. In addition to the facts and findings in numerous
reports by
expert witnesses the parties also relied on the hospital records of
the plaintiffs hospitalisation (which I was informed
were also common
cause) as well as the joint minutes prepared by the respective
parties various expert witnesses. I have had regard
to all of these
documents in determining the dispute.
[4] The plaintiff
was transported from the scene of the collision to Ellisras hospital
by ambulance (he was later transferred to
Polokwane Provincial
Hospital). When admitted he was fully conscious. The plaintiff
suffered injuries to the cervical and lumbar
spine and a head injury
with concussion.
[5] The length of
this first period of hospitalisation is not clear from the records.
The parties agree though that the total length
of hospitalisation for
the treatment of his injuries was substantial. It was accepted as
roughly six months in total.
[6] After the first
period of hospitalisation (i.e. that immediately following the
collision) the plaintiff was admitted for a second
time to the
Ellisras hospital and was transferred from there to Polokwane
Provincial Hospital on 6 July 2007. He complained that
he had been
unable to lift the left side of his body since 3 July 2007, was
experiencing back pain and tenderness in lumbar area.
He also
complained of erectile dysfunction.
[7] An MRI scan
showed a L4/L5 inter-vertebral disc protrusion with compression of
the left L4 nerve root, a L5/Slintervertebral
posterior disc bulge
with impression on the left and right nerve roots of L5, a thoracic
spine intervertebral disc bulge at T5/T6
with a thecal sac
compression at that level and spinal cord impression.
[8] On 2 August 2007
he was transferred from the Polokwane Provincial Hospital to the
George Mukhari Hospital. At George Mukhari
Hospital he underwent
spinal surgery; an artificial disc was inserted at the levels L3 L4.
Whether this was during September 2007
or September 2008 is not
entirely clear from the records. After being discharged from hospital
he was treated as an out-patient
at Mokopani Hospital.
[9] The plaintiff
was initially treated conservatively- analgesics, physiotherapy and
rest. Much later he underwent the disc replacement
surgery. There
exists a probability of future surgical interventions. These will
require approximately five days hospitalisation.
[10] As a
consequence of his injuries the plaintiff suffered acute pain between
one to two weeks following the collision. Post operatively
he
experienced severe acute pains for a period of fifteen days. He
continues to experience chronic moderate to severe cervical
spine
pain as well as lumbar spine pain with associated paraspinal muscle
spasm. The pain and discomfort is aggravated when travelling
or
walking long distances, sitting too long or bending forward. Acute
pain is expected from any future surgical interventions.
There also
has been a loss of lumbar lordosis as well as normal cervical spine
lordosis. The posterior neck pain is aggravated
by turning to the
sides and other pain is aggravated by activity and inclement weather.
[11] Then, there is
the reduced power in the left lower limb as well as reduced sensation
over it, monoparesis of the left lower
limb. There are also signs and
symptoms of spinal cord compression which are more pronounced on the
left side.
[12] The plaintiff
wears a lumbar support brace (corset) since the collision and has an
18 cm surgical scar over the lumbar area.
He suffers from severe
erectile dysfunction, which seems to be a cause if not the major
cause of his moderate depression, his low
self-esteem and his
reluctance to form a relationship with the opposite sex. The
plaintiff had since the collision not been intimate
with the opposite
sex. Because of this condition the plaintiff has never attempted to
establish a relationship.
[13] The plaintiff
completed grade 11. His two attempts to complete grade 12 were
unsuccessful. He was always employed in an unskilled
environment. At
the time of the collision he was employed as a packer at a fruit and
vegetable market. After the collision, he
was unable to resume any
type of employment on a permanent basis even though he attempted to
do so on two occasions. There is consensus
that his injuries (and the
sequelae thereof ) have rendered him unemployable.
[14] The plaintiff
is no longer able to play soccer and spends most of his time sleeping
at home. He struggles with domestic chores
such as gardening,
household maintenance as well as with shopping and cooking. Because
he is unable to sit too long he no longer
watches television. Apart
from all of this he can tie his shoes only if he is in a seated
position. He is unable to sleep on his
left side.
[15] There is
consensus that the plaintiff is unemployable in the open labour
market.
[16]
This brings me to the present dispute. There is no magic formula for
determining the quantum of general damages a plaintiff
is entitled
to. Courts have resisted doing so. The accepted approach to
quantifying general damages is a flexible one.
1
The appellate division had this to say many, many decades ago:
“
The
amount to be awarded as consequence can only be determined by the
broadest general considerations and the figure arrived at
must
necessarily be uncertain, depending on the Judge's view of what is
fair in all the circumstances of the case
,”
2
[17]
Claassen J in
Revneke
v Mutual and Federal Insurance Co Ltd
was
acutely aware of the difficult task a court faces. General damages
include items such as pain and suffering, loss of amenities
of life,
disfigurement. What are amenities of life? I find a useful
description too in this case. Claasen J remarked:
“
...
'loss of amenities of life’ has been defined
as 'a diminution in the full pleasure of living’ see H West &
Son Ltd
and another
v
Shephard
[1963] UKHL 3
;
[1963] 2 All ER 625
(HL) at 636G-H . The
amenities of life flow from the blessings of an unclouded mind, a
healthy body, sound limbs and the ability
to conduct maided the basic
functions of life such as running, eating, reading, dressing and
controlling one’s bladder and
bowels.
[18] In regard to
the payment of general damages to an injured person Holmes JA found:
“
....claims
for bodily injury involving pain and suffering and the like have this
in common with the action injuriarum-namely that
both relate to
non-pecuniary loss and the amount awarded is regarded in the nature
of a solatium.
,.”
3
[19] In determining,
the appropriate award for general damages resort may be had and is
more often than not had to comparable cases
for guidance. However, a
guide is all that they can be. Arriving at an appropriate award is
not a perfect science. No two injuries
have the same consequences for
the injured person.
[20]
In
Marine
Trade Insurance Co Ltd v Goliath.
1968
(4) SA 329
(A) at 333H van Blerk JA stated:
“
...in
Capital Assurance Co. Ltd
v
Richter,
1963 (4) SA 901
(AD) at p. 908, it was
stated that comparison can only be usefully undertaken where the
circumstances are clearly shown to be broadly
similar in all material
respects. In Sigournay
v
Gillbanks,
1960 (2) SA 552
(AD) at p. 556B, the
opinion was expressed that regard should be given to a general idea
of the sort °f figure which by experience
is regarded as
reasonable in the circumstances of a particular case. This suggests
that a court need merely draw on its own experience
and does not
require to be reminded of earlier awards by the citation of an array
of decisions.
In theory it
may sound well that regard should be had to previous awards in
comparable cases but in practice, as was pointed out
by this Court in
London Assurance v Cope, 1963 (1) P.H. J6, the difficulty is to find
comparable cases....”
[21]
I have considered earlier awards. I do not intend to cite all of
them. Both counsel referred to me to cases they considered
to be
comparable to this case. Plaintiff’s counsel invited my
attention to
Wright
v Road Accident Fund
(3425/09)
[2011] ZAECPEHC 15 (15 May 2011) a decision by Eksteen J in the
Eastern Cape. The plaintiff was awarded R750 000.00 for
general
damages. The injuries suffered were more severe.
4
The sequelae of some of his injuries were comparable to those
experienced by the plaintiff. Wright was however not unemployable.
My
attention was also drawn to
Janse
van Rensburg v Road
Accident
Fund
(11522/2011)
[2014] ZAGPJHC 71 (4 April 2014) a decision by Francis J in the South
Gauteng High Court. Ms Janse van Rensburg was
awarded R450 000.00 for
general damages.
[22] In my view,
such an award is not fair in the present circumstances. The plaintiff
suffers from severe erectile dysfunction.
I can only imagine how this
affects his self-esteem and worthiness. He was in a stable
relationship at the time of the collision.
The mother of his child
accused him of infidelity because of his sexual limitations and left
with the child. The plaintiff is unable
to sit sufficiently long to
watch television. He complained that the pain causes him to lie down
and he spends most of his time
sleeping. It is not entirely clear to
me for how long the plaintiff was hospitalised. The parties accepted
that since the collision
he has been hospitalised for approximately
six months. The plaintiff underwent surgery in September 2008 (a
discectomy) as well
as on 21 May 2011 (repeat lumbar surgery). He may
require further surgery.
[23] The defendant’s
counsel argued that in determining the award I should take into
consideration the fact that the first
defendant has undertaken to
provide aids that will ameliorate the loss of amenities of life and
ease the pain and suffering. In
this case however I am not privy to
what aids (para medical or otherwise) have been provided or may in
the future be provided to
the plaintiff. I am mindful that the first
defendant has undertaken to compensate the plaintiff for future
medical expenses. I
accept that the provision of aids to ameliorate
pain and suffering and other discomforts can be taken into account in
assessing
an award as to general damages. In addition to all of this
he is unemployable. This in itself must be very discouraging. The
plaintiff
spends his days waiting for his life to pass.
[24]
I have cursorily looked at some of the aids which the occupational
therapist has suggested
5
.
While they may ease some of the burdens the plaintiff has to bear,
they cannot alleviate most of the pain he has to endure. I
am aware
that medication has been prescribed for the severe erectile
dysfunction. How effective this will be only time will tell.
[25] In all the
circumstances of the case, in my view, an award of R 550 000.00 is
reasonable. In the result I make the following
order:
1. The defendants,
jointly and severally, pay to the plaintiff, as general damages, the
sum of R550 000.00;
2.
Interest on the aforementioned sum at the rate of 8% p.a
a
tempore mora;
3. Costs.
SK HASSIM
Acting Judge:
Gauteng North High Court
29 January 2015
Date of Hearing: 4
September 2014
Date of Judgment:20
January 2015
For applicant: Adv R
Hawman.
For respondent: Adv
JM Kilian
1
Revneke
v Mutual and Federal Insurance Co Ltd
1991
(3) SA 412
(W)
2
Sandler
v Wholesale Coal Suppliers Ltd
1941
AD 194
@199.
3
Government
of the Republic of South Africa v Neubane
1972
(2) 601 (A) at 607B-C.
4
Among
others a wedge compression fracture of Level T 12 of the vertebral
body with a comminution, a vertical AP split fracture,
stenosis of
the spinal canal. He was a complete paraplegic in the early stages
after the collision.
5
Industrial
Psychologist Mrs Motake. E.g. long handled sock aid, shoehorn, nail
clippers, sponge, brush and dustpan, mop, grab rail
at the toilet,
raised toilet seat, easi reach (I do not know what this is) trolley,
shopping basket on wheels, raised swivel chair
on castors, washing
machine. A helper (domestic chores and the garden) two half days
twice a week and access to indoor running
hot and cold water to a
drainage system with a bath or shower were also recommended.