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[2009] ZAGPPHC 179
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Lourens v Road Accident Fund (30468/2006) [2009] ZAGPPHC 179 (23 March 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
AND SOUTH GAUTENG
CASE NO.: 30468/2006
DATE:26/03/2009
C
E
LOURENS
...............................................................
Plaintiff
v
ROAD
ACCIDENT FUND
............................................
Defendant
JUDGMENT
Sapire
AJ
The
plaintiff has made claims on the Road Accident Fund for compensation
for damages sustained by her minor children, Johannes(20)
Magdalena(18) and Stephanus (17) The claims arise out of an incident
on 12 April 2001 which took place at Botha Avenue Centurion
The
Plaintiff and her husband were there performing the duties of
pointsmen in collaboration with each other to control and co ordinate
the heavy flows of traffic, indifferent directions.
Msiza,
the driver, of the insured vehicle, a Toyota minibus, HJC515GP was
conspicuously negligent, clearly did not control it as
he should
have, and collided with the deceased dragging him for some distance
on the tarmac before coming to a halt. This took
place directly in
the Plaintiffs line of vision as she had to continually observe the
deceased’s signals to respond with
directions for the stream of
traffic responding to her signals.
It
takes little imagination to appreciate the horror, to which the
plaintiff was subjected, seeing her husband cruelly injured in
this
way before her very eyes. This might be a classic case giving rise to
a claim by her for damages for emotional shock
The
deceased was severely injured but survived his ordeal for some
months. During this period he was at times at home but had to
go to
hospital to undergo a number of operations. His condition however
deteriorated until he succumbed to encephalitis and died
on 1st
December 2002. His death was according to the evidence in all
probability linked causally to the initial injury. Although
this
conclusion that the deceased died of the injuries sustained in the
accident was originally in issue, there was no evidence
to contradict
the testimony of the plaintiffs expert witness. The Defendant
eventually conceded that the deceased died as a result
of injuries
inflicted on him by the negligent driving of the person in control of
the insured vehicle.
The
amounts of the loss of support caused by the incapacitation and
subsequent death of their father, have been calculated by an
actuary
and now accepted by the Defendant. This element of the plaintiffs
claims is now agreed and judgment for the plaintiff will
be
accordingly given in accordance therewith.
What
remains for decision are the claims for damages allegedly suffered by
the children caused, (quoting from the particulars of
claim) “by
the collision, the injuries sustained by the deceased therein as well
as the consequent death of the deceased
which caused the children to
suffer trauma and serious emotional shock.” The amount claimed
for the children under this head
is R60 000 each.
The
claims so formulated give an impression of imprecision and vagueness.
It seems, bearing in mind that the deceased died some
eighteen months
after being injured, strange that all thee children alike should,
each of them, be similarly affected by his being
injured and the
deceased’s consequent death. There is no evidence of, if and
when the children or any of them first saw the
deceased after he had
been injured, and how the sight or report of their badly injured
father was so traumatic as to have the result
for which the plaintiff
contends. Grief and depression which is commonly to be experienced by
many as the result of a loved one,
does not necessarily give rise to
a claim for damages. The plaintiff alleges in the summons, paragraphs
10 11 and 12 that the claim
for each of the children is for general
damages for emotional shock and trauma suffered on account of the
death of the deceased.
From this one may gather that they were not
traumatised until their father’s death on 1st December 2002,
twenty month after
the accident.
The
fact that none of the children came to testify operates adversely to
the plaintiffs case. There is no evidence of any professional
help
having been sought during the years succeeding their father’s
death to diagnose and treat the respective conditions
of each. This
means that there is no expert evidence based on observation close to
the time of the death..
The
Plaintiff relied to a large extent on the expert testimony of Dr I E
Walters to establish claims for damages. Her reports were
accepted
unchallenged as evidence. It is clear that the expert made extensive
enquiries and did deep research to arrive at her
conclusions based on
her knowledge and experience in her discipline. The factual bases of
her conclusions have not been proved.
The reports fall short of
establishing psychological trauma in each or any of the children
caused by and attributable to the negligence
of the driver of the
insured vehicle. She did not see the children until years after the
deceased had succumbed to his injuries
two years after the accident,
and her reports were made for the purposes of this action only
relatively shortly before trial.
I
have observed that the children were not called to describe the
effect of the tragedy on them. They are none of them infants and
the
eldest will soon attain his majority. Their evidence may have gone
some way to have established the necessary link with Dr
Walters’
report, and the psychological trauma which is said to give rise to
the claims under this head. The plaintiff did
not call them as
witnesses and did not explain this decision.
Not
every loss of or injury to a parent causing distress to a child of
that parent, gives rise to a claim for damages. It is difficult
to
accept that all three children remain similarly in a continuous and
continuing state of depression because of a psychological
trauma. It
is too facile and simplistic to attribute the condition in each child
found and described by Dr Walters to trauma. What
caused the trauma?
Was it having to live with their father after the accident, or was it
his death?
In
Road Accident Fund V Sauls
2002 (2) SA 55
(SCA) it was observed
A
further existing limitation is, of course, proof of the actual harm
suffered and its sequelae, the burden of which rests on the
claimant.
It is in this frequently neglected field that extravagant claims will
be exposed.
The
limitation referred to is of course to claims arising from
psychological trauma.
In
the present case the lack of evidence from the individuals who are
alleged to have suffered the damage, precludes the granting
of relief
under this head.
There
will therefor be judgment in favour of the plaintiff in her
representative capacity, against the Defendant for payment of
the
several sums
In
respect of Johannes R152 083-61
Magdalena
R179 916-58
Stephanus
R216 284-81
to
be retained and administered by the plaintiff on behalf of her
respective minor children until each attains majority. During
the
minority of each child the plaintiff shall be entitled to invest such
portions as she may see fit and to utilise and apply
so much thereof
as may be required for their education support and reasonable
pleasures. On the attainment of each of the children
of their
respective majorities she shall pay over any amounts remaining to the
child who is the beneficiary of this judgment
Interest
at 15.5% per annum shall be paid on the above amounts in so far as
payment shall not have been made twenty one days after
the date
hereof.
The
Defendant shall pay the plaintiff’s party and party costs of
the action including the qualifying and attendance fees travelling
expenses and where applicable the cost of medico legal reports of
Dr
G du Plessis
Jacobus
Farmer
Dr
C dos Santos
And
the actuary Gerard Jacobson
Sapire,
AJ