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[2009] ZAGPPHC 327
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N v Road Accident Fund (13660/2004) [2009] ZAGPPHC 327 (13 August 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE
NO: 13660/2004
In
the matter between:
K.S
.N. PLAINTIFF
AND
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MOLOPAJ
The
Plaintiff, an adult [……] (now deceased) in his capacity
as father and natural guardian instituted an action on
behalf of his
son S.H. N. (hereinafter referred to as “S.”), against
the Defendant for damages arising out of a collision
which occurred
on 15 May 2001 between a motor vehicle with registration letters and
number […..] and S.
S.,
who was brn on [……], was on 15 May 2001 at
approximately 15H25 and at […..] road in the district of
Nkomazi,
Mpumalanga, involved in a collision with a motor vehicle,
BMW with registration letters and numbers [......] (“the
insured
vehicle”). S. was at the time a pedestrian.
As
a result of the collision in question, S. sustained severe bodily
injuries, inter alia:
♦
Head
injury with cerebral oedema:
♦
Fracture
of the right clavicle
♦
Abrasions
of the left hip;
♦
Laceration
of the right elbow;
♦
Paresis
of the right arm and leg:
♦
Lacerations
of the left parietal area over the scalp;
The
Defendant has conceded liability. When the matter came before me for
hearing on the quantum of damages, the parties
had reached an agreement, in terms whereof the Defendant agreed:
*
To pay R750 000.00 in respect of S.’s
loss of income:
*
To provide an undertaking in terms of
section 17(4)
(a) of the
Road Accident Fund Act, 56 of 1996
(“The
Act”), in respect of S., wherein the Defendant undertakes to
pay S.’s costs in respect of future accommodation
of S. in
hospital or nursing home, or treatment of or rendering of a service
or supplying of goods to S. arising out of the injuries
sustained by
S. in the collision aforesaid. In terms of the undertaking the
Defendant would also be liable for the costs of a curator
bonis
for S., which costs will include the
appointment of the curator
bonis,
the costs of setting up security by the curator bonis
and remuneration of the curator bonis;
*
To pay the Plaintiffs taxed or agreed
party and party costs on a High Court scale, which costs shall
include the Plaintiff s costs
and expenses as far as experts and
senior junior counsel are concerned, including the costs of obtaining
reports and the reasonable
preparation, reservation and qualifying
fees, if any, of all the experts of which the Plaintiff gave notice
in terms of Rule 36(9)
(a) and (b).
All
the court was called upon to determine was the amount to be awarded
to S. for general damages, which amount could not be agreed
upon
between the parties. Further, the parties had agreed that for
purposes of the argument for the award of general damages, the
reports filed by the experts in terms of Rule 36(9)(a) will be
accepted as evidence before court and that there is no need to call
any specific expert witnesses.
Apart
from the various reports filed by the experts in terms of Rule 36(9)
(a), S.’s mother, Mrs M.N. testified that S. who
was born on
[….], was involved an accident on 15 May 2001 wherein he
sustained injuries.
She
testified that at the time of the accident S. was three (…)
years old, that he was eight (….) years old in 2006.
That S.
was a healthy child before the accident and his development as a
child was normal.
She
further testified that after the injuries sustained at the collision,
S.’s behaviour changed. That his mentality is not
right, he
does funny things like opening pots on the stove to see what is
inside the pots. That this is dangerous for him because
he would end
up being burnt, that therefore she (the mother) has to look after him
all the time. That it is not possible to leave
S. unattended because
of his mentality because he does naughty things.
She
further testified that S.’s personality has changed, he is not
the same as before the accident; for example, that he would
assault
or hit his youngest brother without any reason. That the behaviour of
the other siblings around him is that they are well
behaved towards
S. knowing that he is sick.
She
further testified that S. usually complains of chest pains and
headaches and that she, the mother, buys panado tablets for him.
That
she sometimes takes him to the clinic. That S.’s upper back
right side is painful. That his right arm is not working,
he has an
operation on the elbow area, that he can’t use his right arm.
That he often complains on weather days (when it
is cold and/or
cloudy), maybe once a week. That she does not trust him to buy goods
at the shops because he does not want to be
sent to the shops. That
S. is forgetful, for example, if one asks him to bring a cup he would
bring a different item than the one
requested.
She
further testified that S. attends school. That he cannot go to school
alone because he gets lost, can’t find his way home.
He goes to
school with his youngest brother, B., aged […] years old. That
he cries often. That if his younger brother is
not going to school he
would also not want to go to school. That he is emotional and that
before the accident he was not emotional.
She
testified that S. has some difficulties at school, he performs badly
at school. That she (the mother) was called to the school
and
informed that S. is a slow leamerthat he (S.) does not understand
what is being taught in class.
That
S. does not do sports, he only plays with toys. That he cannot play
soccer because his right leg does not have balance. That
he tires
quickly and sleeps when tired. That once in a while S. wakes up in
his sleep and screams. That he takes time to understand
what is being
said to him. That he does not wet his bed.
She
further testified that S. has hearing problems, that both his ears
emit some black substance. That she cleanses it up, that
she is not
sure if this affects his hearing. That S. is very different from her
other children. She has to look after him full
time.
Under
cross examination she testified that she has never worked, she has
always been a housewife. That she has five children, S.
is the fourth
child, and the youngest child is [….] years old. That he (the
youngest child) is the one that walks to school
with S. She stated
that she knows that she is in court because of matters pertaining to
S. for the court to effect payment.
On
the question by defendant’s counsel that if the court finds
that the injuries were serious the award will be more and if
the
injuries were not so serious the award will be less, she failed to
give an answer. She stated that according to her she is
of the view
that the child (S.) is seriously injured.
She
disputed that generally young children are naughty in their nature
and need to be looked after and also disputed that it was
normal that
a young child like S. would open pots or play with fire. On how he
observed the changes on S. pre and post the accident,
taking into
consideration that S. was only three years old at the time of the
accident, she stated that if one reprimands him not
to do something
he would still do that
i.e. he would not
listen when reprimanded.
She
stated that she took S. to the clinic when he complained that his
ears were painful, that at the clinic they told her that the
nerves
to the' ears are blocked.
She
stated further that S. often complains of chest pains when it is cold
and that he ought not to have hot meals. That she took
him to the
hospital for the chest pains and they gave him tablets, that the
hospital said that there is nothing they can do about
the chest
pains.
She
stated that S. hits his youngest brother and would also hit his older
brother without reason.
She
stated that she has never had any complaint that at school S. hits
other children. That at school he is always in the company
of his
youngest brother, B., She further stated that the report by the
teacher at school is that S. is not violent, he has a good
relationship with his peers, in this regard the court was referred to
the report from the school dated 30 March 2006, page 121
of the
plaintiffs bundle. She further stated that S. may be good at school
as reflected on the school reports, however that at
home he is
different. That at school he behaves well and at home he is violent.
That he attends school regularly. She stated that
S. and B. are not
in the same class.
She
further stated that S. cannot participate in sports, however, that
when other children (his peers) are playing soccer he would
just be
with and/or around them, looking at or them and he would laugh if he
wants to. That he would be in their midst even though
not playing
soccer with them.
She
stated that the shops are a bit far, that there is a spaza shop
nearby and she prefers to send the elder children to the spaza
shop
or to the shops because of the experience she had with S.’s
accident. She stated that it is not safe to live children
under ten
years old alone because they need constant care, and that this
applies to S. as well.
Under
re-examination she stated that she cannot send S. to the shops
because S. cannot manage money, he loses money therefore she
does not
send him to the shops anymore.
She
stated that the teacher called her to school because S. does not
concentrate on what is being taught at school. That the teacher
informed her that S. needs help on teamwork because he is a slow
leaner.
That
summed up the evidence of Mrs M.N., S.'s mother.
In
evaluating Mrs N. evidence it is clear to me that she was in some
respects exaggerating the condition of S. Most of what she
testified
about the behaviour of S. is not different and or inconsistent with
the behaviour of the children in S.’s age,
as for example
opening pots when food is being cooked, hitting his younger brother,
this surely amounts to sibling rivalry, it
is not something which can
be attributed to the sequelae of the accident. It is clear from the
evidence and from the report from
school that S. has a good
relationship with other children and adults at school and the fact
that he fights with his siblings,
especially his younger brother,
cannot be said to be a change in behaviour because of the accident.
Further, in her own evidence
she specifically confirmed that S. does
mingle/mix with his peers, and that, although he cannot take part in
sport because of physical
limitations, he does spectate while his
peers are playing sport. S. seems to be sociable in my view. Even the
school report referred
to above states that S. has a good
relationship with his peers at school and that he is not violent.
According to Dr Marus, the
neurosurgeon that, on the instruction of
the Defendant, examined S., in his report dated 13 July 2004 S. will
be able to participate
in sporting activities, although he will not
be as good as his peers.
It
must be kept in mind that in so far as the behaviour of S. is
concerned, the various experts who prepared reports relied on the
information provided to them by Mrs M.N. (S.’s mother); as for
example, the findings of Walters, the clinical Psychologist,
are
consistent with what has been stated by Mrs N. in her evidence in
court. As already indicated here above, I am of a considered
view
that she (Mrs N.), to some extent exaggerates the condition of S. in
so far as his behaviour post the accident is concerned.
She sought to
portray, in my view, that S. is mentally deranged/mad/insane, which
on the evidence cannot be correct. S. may have
suffered head injuries
as indicated by the experts, especially Drs Rossouw and Marus, but on
the evidence before this court it
cannot be said that he is
mad/insane.
In
so far as Mrs M. N. evidence on S. complaining of chest pains,
headaches, and problems with his ears emitting some ‘black
substance’, there is no expert report confirming this.
The
main contention between the parties is the degree of the Head
injuries sustained by the minor child, S., and the sequelae thereof.
Dr A P Rossouw, a neurologist instructed by the Plaintiff, in his
report dated 30 July 2003. describes S.’s head injuries
as
follows:
“
Hierdie
pasient het 'n ernstige hoofbeserings gehad met 'n lang bewussyn
verlies (minstens een week) en ookbrein edeem... "
Dr
Rossouw further states in the report that:
“
Die
pasient is van ondergemiddelde verstandelike vermooens met ook ‘n
afgeplatte emosionele respons....Die pasient gdan wit
soas hy ouer
ward verbeter maar hy gaan nooit normaal wees nie
”
,
Dr
G Marus, the neurosurgeon that, on the instruction of the Defendant,
examined S. states in his report dated 13 July 2004 that
S. has:
“
had
a moderate to severe diffuse brain Injury
(concussive head injury/ After this type
of injury one would expect some cognitive impairment to occur
although the degree is not
standard and would need to be evaluated. "
From
the reports at hand it appears that after the collision S. was taken
to S[….] Hospital where he was transferred to W[….]
hospital for brain scan. He was transferred back to S […..]Hospital
on the same day. He remained admitted at S[….]
Hospital for
two (2) months; he was in a coma for approximately one (1) week.
Apart
from the head injuries described above.it is recorded in Dr Rossouw’s
report that S. was, on examination, found to have
asymmetry of the
face but no explicit weakness. His intelligence was found to have
diminished. He would improve in future as he
grows up, but he would
never be normal. His speech is reasonably normal. His eyes and/or
vision are normal; his hearing is normal.
His right arm is weaker
than the left arm; he is clumsy with his right arm but he can use it
if he is forced to, however, he prefers
to use his left arm. His
right foot showed weakness, it would improve with time. At the time
of the examination on 6 July 2003(by
Dr Rossouw), S. was said to be
already walking well, (that he would walk normally) though he would
remain a bit clumsy and would
not be able to run well.
Scholastically
S. would not obtain any academic qualifications. He would have to be
sent to a special school. Issues relating to
future loss of income
have, as stated above, already been agreed upon.
Dr.
Rossouw has stated in his report that
“
die
pasient kan nog oor die volgende juar of twee redelik verbeler
There
is no evidence tendered on behalf of the Plaintiff on whether S. has
improved or not, despite what has been stated by Dr Rossouw.
On a
question from this court, Counsel for the Plaintiff indicated that S.
was taken to Dr. Rossouw for a follow up assessment,
but that he was
not in possession of the follow' up report in question. It is a
worrying factor that during the trial Plaintiffs
Attorneys failed to
provide the court with the latest report on the status of the minor
child, especially if one has regard to
the fact that Dr. Rossouw in
his report dated 30 July 2003 had indicated that “ 'n mens moet
ook aanmerking neem dat die
pasient (referring to S.) oor die
volgende twee jaar nog redelik kan verbeler”.
despite having taken S. for such follow
up. Dr. Marus has also suggested in his report dated 24 July 2004
that S. would have to
be re-evaluated, obviously to assess to what
extent he has or has not improved, physically and intellectually.
It
would have been prudent in my view to have all the facts before'
court. However, the court has to rely on old reports whereas
the
follow' up reports could also have been made available by the
Plaintiffs Attorneys. Nothing can be done about this since they
(Plaintiffs Attorneys) elected not to furnish the court with such
follow' up reports (despite having furnished other supplementary
reports just before trial, as for example one by C. Lennox, an
industrial psychologist, dated 21 August 2006 dealing with the issue
of future loss of income, which has in any event been agreed upon).
Be
that as it may, there is no doubt, as the parties also do agree, that
S. has suffered head injuries, and this is confirmed by
the relevant
experts, Drs Rossouw and Marus, albeit a lack of insight into the
current sequelae in so far as any improvement may
or may not have
occurred.
I
have been referred to various decided cases by both Counsel on the
various awards made in various cases 'where Plaintiffs/minor
children
were involved in cases where they had suffered, amongst others, head
injuries.
As
stated by my brother Du Plessis J in Lyndy-Lee and RK Green v RAF, an
unreported case no. 30840/00 to which I was referred, “awards
for general damages are no more than an effort somehow, as best we
can, to compensate the injured. On the same basis previous awards
are
no more than guidelines. A court looks at the previous awards and
tries to identify cases where the losses are similar, but
more
serious, thus meriting higher awards than the case at hand and also
at cases in which the issues are less severe meriting
lower awards.
Within those parameters the court slots in the case at hand.”
As
already stated, I have been referred to many cases by both Counsel,
including the judgement in Lyndy-Lee and RK Green vs RAF.
I have
consulted and have had regard to these cases. I shall not repeat the
facts of these cases.
In
most of these head injury cases the awards in present day values vary
between R105 000 and R904 000. On the lower end of the
parameters now
relevant there are cases of brain injury with less serious sequelae
than in the present case, as for example Nhlapo
vs. Mutual and
Federal Insurance Company 1995 4 C & B3-32(W) where an award of
R45 000 General Damages, with present day value
of R105 000 was made.
On the higher end of the parameters now relevant there are cases like
Zarrabi v RAF 2006 5 C & B B4-
231 (T) [a medical doctor who was
involved in a collision in 2002, during her internship, and a short
while after she got married],
with more serious sequelae than in the
present case, where an award of R800 000 General Damages, with
present day value of approximately
R963 000 was made.
I
hold the view that in the unreported case of LL & RK Green
referred to hereabove the sequelae is also much more serious than
in
this case, and merited a higher award (R800 000.00 General Damages in
2006).The minor child therein (Rachel Green), had in addition
to a
diffuse concussive brain injury--, suffered a focal injury' to the
left hemisphere of the brain, resulting in severe right
sided
hemiplegia with hemiatrophy that drastically affected her right arm
and right leg. Rachel's situation was apparently referred
to by one
of her neurosurgeons as being comparable to that of a cerebral
palsied person. On the evidence before this court (including
the
expert repons) this cannot be said of S.. S. does not find it hard to
socialise whereas Rachel does. From Mrs Ntandane’s
evidence,
and the school reports, on a balance of probabilities, S. does
socialise with his peers. Although his right hand is said
to be
clumsy, it is stated that it would improve in future. On the report
of Dr. Roussouw (page 49) it is stated that if forced
he can actually
use his right hand but that he prefers to use his left hand.
His'right leg is actually said to be normal, though
clumsy, unlike
Rachel who has had a serious atrophy of the right hand and right leg;
she(Rachel) has a "dropped foot"
and walks with a
hemiplegic gait. Her speech is also slow and hesitant due to the
head/brain injury. This is not the case with
S.. There is also some
visual impairment on the right side in so far as Rachel is concerned.
In my view her head injury seems to
be much more severe than S.’s
Regard
being had to the facts herein, S.’s case is clearly
distinguishable from the Green case. The sequelae in that case
(Green) were clearly more invasive than in S.’s case. In my
view S.’s general damages should be less than in the Green
case.
Having
regard to all the circumstances it is my view that an amount of R400
000 general damages is appropriate in the circumstances
herein.
As
already stated here above, the parties herein had agreed on the other
heads of damages, to wit, payment of R750 000 in respect
of S.'s
claim for future loss of income. The Defendant has also agreed to
provide S. with an undertaking in terms of
Section 17(4)
(a) of the
Road Accident Fund Act, Act
No 56 of 1996, and also to pay the
Plaintiffs costs on a High Court scale, which costs shall include the
costs of obtaining reports
and the reasonable preparations,
reservations and qualifying fees of all experts of which the
Plaintiff gave notice in terms of
Rule 36(9)
(a) and (b).
In
the result I make the following order:
1.
The Defendant is ordered to pay an amount of R750 000.00 (seven
hundred and fifty thousand rand) in respect of S. H. N. (“S.”)’s
future loss of income.
2.
The Defendant is ordered to pay an amount of R400 000.00 (four
hundred thousand rand) in respect of S.’s general damages.
3.
The Defendant is ordered to furnish an undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act, Act
No 56 of 1996,in
respect of S., wherein the Defendant undertakes to pay the minor
child, S. H. N. born on […..] (“S.”)’s
costs
in respect of future accommodation of S. in a hospital or nursing
home, or treatment of, or the rendering of any service
or supplying
of goods to S. arising out of the injuries sustained by S. in the
motor collision that occurred on 15 May 2001. In
terms of the
undertaking the Defendant shall be liable for the costs of a curator
bonis for S., which costs shall include the appointment
of the
curator bonis, the costs of setting up security by the curator bonis
and the remuneration of the curator bonis.
4.
The Defendant is ordered to pay the Plaintiff s taxed or agreed party
and party costs on a High Court scale, which costs shall
also include
the Plaintiff s costs and expenses as far as the experts and senior
junior Counsel are concerned, including the costs
of obtaining
reports and the reasonable preparation, reservation and qualifying
fees, if any, of all the experts of which the Plaintiff
gave notice
in terms of
Rule 36
(9) (a) and (b).
0
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5.
S. H. N. (“S.”) is declared to be incapable of managing
his financial affairs.
6.
M. M. P. is hereby appointed as Curator bonis to the estate of S.
with the following powers:
6.1.
To receive, take care of. -control and administer all of the assets
of S.;
6.2.
To carry on or discontinue, subject to any law which may be
applicable, any trade, business or undertaking of S.;
6.3.
To acquire, whether by purchase or otherwise, any property, movable
or immovable, for the benefit of S.;
6.4.
To let, exchange, partition, alienate and for any lawful purpose to
mortgage or pledge any property belonging to S., or in
which he has
an interest;
6.5.
To perform any contract if any. relating to the property of S.
entered into by him before he was declared incapable of managing
his
own affairs;
6.6.
To exercise any power to give any consent required for the exercise
of such power, where the power is vested in S. for his
own benefit or
is in the nature of a beneficial interest to him;
6.7.
To raise money by way of mortgage or pledge of any of the immovable
property of S. for the payment of his debts or expenditure
incurred
or to be incurred for his maintenance or otherwise for his benefit or
provision for the expenses of future maintenance
or the improvement
of his property;
6.8.
To apply any money for the maintenance, support or towards the
benefit of S.;
6.9.
To incur expenditure in respect of the improvement of any property of
S. by means of building or otherwise;
6.10.
To expend any monies belonging to S. on the maintenance, education or
advancement of any relative of his or any other person
wholly or
partially dependent on him to continue such other acts of bounty or
charity if any, exercised by S. as the Master of
the High Court,
having regard to the value of the estate of S., considers proper and
reasonable:
6.11.
To invest or re-invest any monies of S. which become available from
time to time for investment and which are not immediately
required
for the purpose defined in
Section 82(c)
of the
Administration of
Estates Act, 66 of 1965
, as amended:
6.12.
To institute proceedings which may be necessary for the interest of
S. or for the due and proper administration of S.’s
estate:
6.13.
To, as far as possible, ensure that S. is, by the payment of the
capital figures awarded above and any figures payable in
terms of
this order, and by the use to which that payment is put, protected
from the consequences of the injuries sustained by
him in the
collision in question and is as far as possible enabled thereby to
obtain such financial well-being as he would, were
it not for the
collision, have been able to obtain;
6.14.
To incur expenditure in order to ensure that S. is properly, cared
for;
6.15.
To administer the Undertaking referred to in paragraph 3 above in
respect of hospital, medical and related treatment.
7.
The aforesaid appointment is subject thereto that:
7.1.
The curator bonis furnish security to the satisfaction of the Master
of the High Court; and
7.2
The exercise by the
curator bonis
of the aforesaid powers will
be- subject to the control of the Master of the High Court.
8.
The Defendant
shall not
be liable for any costs of any
formation and/or administration of any trust that might be created in
respect of S. H. N.
Molopa
J
JUDGE
OF THE HIGH COURT