Bens v Sam and Another (479/06) [2008] ZANCHC 10 (29 February 2008)

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[2008] ZANCHC 10
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Bens v Sam and Another (479/06) [2008] ZANCHC 10 (29 February 2008)

Reportable: Yes / No
Circulate to Judges: Yes / No
Circulate to Magistrates:
Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
no: 479/06
Date
heard: 22-02-2008
Date
delivered: 29-02-2008
In
the matter of
:
PATRICIA
LEONORA BENS APPLICANT
versus
LLOYD
SAM 1
ST
RESPONDENT
MELODY
MADUBELA 2
ND
RESPONDENT
Coram:
MAJIEDT J
JUDGEMENT
MAJIEDT
J:
1.
This
matter was heard in the Motion Court. The plaintiff applies for
default judgment in the amount of R7 977 010.00 plus
interest and costs against the first defendant only at this stage.
After hearing argument, I had reserved judgment which I now hand
down.
2.
Plaintiff’s
claim is for damages suffered as a consequence of injuries sustained
during a motor vehicle accident which had occurred
on 18 May
2003 outside Upington. At the time of the accident she was a
passenger in a motor vehicle driven at the time by the
first
defendant and allegedly owned by the second defendant and her late
husband. Plaintiff avers that the accident was caused solely
by the
negligence of the first defendant who:
a)
drove
at an excessive speed in the circumstances;
b)
failed
to keep to the vehicle under proper control;
c)
failed
to apply the brakes of the vehicle either timeously or at all;
d)
failed
to take any or adequate steps to avoid the accident when by
exercising reasonable care he could have done so.
3.
It
is not necessary for purposes of this judgment to deal with
plaintiff’s averments with regard to the negligence of the second
defendant. Summons was served on the first defendant on 24 April 2006
and he delivered notice of his intention to defend the action
on 23
May 2006. Despite having been called upon to do so in terms of the
Rules, the first defendant has failed to file a plea to
the
particulars of claim and his attorneys of record withdrew in
accordance with the prescripts contained in the Rules on 10 August
2006. First defendant is therefore in default of plea.
4.
Plaintiff
originally claimed for damages in the sum of R4 831 400.00,
interest and costs of suit. The increased amount
of her claim, as
set out in par 1 of this judgment, is as a consequence of
additional and updated medico-legal reports.
5.
The
notice of set down, reflecting the plaintiff’s increased claim as
set out in par 1 above, together with annexures which
include an
affidavit by plaintiff and affidavits by the experts who had compiled
medico-legal reports as well as an affidavit of
an actuary, were all
served on the first defendant on 30 January 2008. First defendant is
therefore in default of plea and the matter
has been properly set
down in terms of the provisions contained in Rule 31(2)(a).
6.
The
plaintiff has filed an affidavit in which she avers that the first
defendant was negligent in the respects set out above. She
also
stated therein that she had received an amount of R25 000.00 as
compensation from the Road Accident Fund (RAF) which, in
terms of
statutory prescripts, is the limit of the payment that the RAF is in
law obliged to make to her as a non-fare paying passenger.
She also
provides information in the affidavit with regard to her present
medical condition, namely the fact that she is a tetraplegic,
permanently confined to a wheelchair, permanently unemployable and
dependant on the assistance of a full-time aide. From her affidavit
it appears that the first defendant had lost control of the vehicle
around a sharp bend, causing it to collide with a road excavation,
whereafter it rolled several times.
7.
A
number of affidavits by experts, containing their medico-legal
reports as to plaintiff’s medical condition, were also filed off
record. These are affidavits of:
a)
An
orthopaedic surgeon who describes her injuries as being tetraplegia
at C4 right and C5 left and a complete lesion of C5/C6 downward.
He
also confirms that she requires a full-time caregiver and that she
has lifelong unemployability.
b)
A
spinal cord injury specialist who confirms the orthopaedic surgeon’s
observations
supra
;
c)
A
physiotherapist who confirms that the plaintiff will require a
fulltime attendant, more accessible accommodation at home and also
independent mode of transport for herself;
d)
An
occupational therapist who confirms the plaintiff’s unemployability
and special needs;
e)
An
industrial psychologist who also confirms that the plaintiff is
permanently unemployable;
f)
Lastly
there is an affidavit and a detailed report of an actuary who
calculated the nett value of the plaintiff’s loss of income
and
future medical expenses. According to his calculations the
plaintiff’s nett total loss amounts to R7 202 010.00,
which has to be reduced by the amount compensated by the RAF, namely
R25 000.00, as set out above.
8.
There
is ample authority that the quantum of a plaintiff’s damages can,
as an exception to the general rule requiring oral evidence,
be
proved by way of affidavit in default judgment proceedings. See in
this regard
inter
alia:
Havenga
v Parker 1993(3) SA 724 (T)
at 725 I – 726 G;
De
Waal v Kruger,
unreported
judgment, Northern Cape Provincial Division (Kriek JP), case number
692/93 delivered on 23 November 1994.
9.
The
aforementioned two judgments relate only to the affidavits of experts
to prove quantum in a damages claim in a default judgment
matter. In
the present matter Mr Haddad, who appeared for the plaintiff,
submitted that I should also allow the affidavit of the
plaintiff to
be received in lieu of
viva
voce
evidence to prove,
inter
alia,
negligence.
He motivated this submission on the basis of the plaintiff’s
severely restricted mobility in that she is permanently
confined to a
wheelchair and is a tetraplegic. I must also add that the plaintiff
is resident in Upington, some 400 km from
the seat of this
Division.
10.
In
Dorfling
v Coetzee 1979(2) SA 632 (NC)
at 635 C-F, Basson AJ (as he then was) held that in actions for
damages
viva
voce
evidence of the cause of action should be adduced even in default
judgment applications. The learned Judge held that:
“
Ek
meen dat in die reël getuienis van die skuldoorsaak gelei moet word
in gevalle waar skadevergoeding geëis word maar dat dit aan
elke Hof
oorgelaat moet word om te besluit of in 'n bepaalde geval afgesien
kan word van sulke getuienis.
In
die geval van motorbotsings meen ek dat dit noodsaaklik is dat
getuienis oor die skuldoorsaak ook voorgelê word sodat bepaal kan
word (i) of verweerder wel nalatig was, (ii) of eiser bydraend
nalatig was en (iii) in laasgenoemde geval die mate van eiser se
skuld met betrekking tot die skade. Dit is eers nadat al die feite
wat as bewys van die skuldoorsaak aan die Hof voorgelê is, oorweeg
is dat die Hof kan besluit of die volle bedrag van die bewese skade
toegeken moet word en of daar 'n verdeling van skadevergoeding
moet
wees ingevolge art 1 van Wet 34 van 1956.”
I agree
with this approach for the reasons mentioned by the learned judge.
The present case is however exceptional by virtue of the
fact that:
a)
The
plaintiff is severely restricted in mobility; and
b)
In
the present matter the first defendant’s negligence can be inferred
on a balance of probabilities on the
res
ipsa loquitur
maxim and there can be no possibility whatsoever of contributory
negligence, given the uncontroverted facts averred by the plaintiff
in her affidavit.
11.
The
first defendant has had sufficient opportunity to furnish his defence
to the plaintiff’s claim and has quite clearly on the
probabilities
chosen not to defend the matter. In the premises I am of the view
that under these circumstances I should permit the
plaintiff’s
affidavit to be received as evidence of the negligence of the first
defendant herein.
12.
This
brings me to the question of the quantum of the plaintiff’s
damages. It is clear that the plaintiff has been quite severely
injured and that these injuries are of lasting permanency. She will
be confined to a wheelchair, for the rest of her life, will
require a
special attendant and will require independent mode of transport for
her needs. She is a tetraplegic and suffers from
faecal and urinary
incontinence. She also experiences severe pain from time to time and
will require ongoing medical treatment and
physiotherapy. Most
importantly, I have no doubt whatsoever that the experts are correct
in their assessments that she is unemployable
for the rest of her
life.
13.
The
actuary, Mr Munro, has furnished two detailed reports, the last of
which was compiled on 22 August 2007. I am satisfied with the
calculations, assessments and assumptions made therein with regard to
the special damages relating to past loss of income of R94 600.00,
future loss of income in the sum of R2 317 500.00 and
present and future medical costs in the amount of R4 789 910.00
for a total of R7 202 010.00. This amount has to be
reduced by an amount of R25 000.00 received as compensation from
the RAF.
14.
All
that remains to be determined is the amount of general damages for
pain, suffering, disfigurement, discomfort, disability and
loss of
amenities to be awarded to the plaintiff. In
Sandler
v Wholesale Coal Supplies Ltd
1941 AD 195
at
199, Watermeyer JA noted that:
“
[
i]t
must be recognised that though the law attempts to repair the wrong
done to a sufferer who has received personal injuries in an
accident
by compensating him in money, yet there are no scales by which pain
and suffering can be measured, and there is no relationship
between
pain and money which makes it possible to express the one in terms of
the other with any approach to certainty. The amount
to be awarded as
compensation can only be determined by the broadest general
considerations and the figure arrived at must necessarily
be
uncertain, depending upon the judge's view of what is fair in all the
circumstances of the case.”
There can
be little doubt that no amount of money can ever adequately
compensate plaintiff, a healthy 21 year old (she was born on
29 July
1981) at the time of the accident, but the compensation awarded can,
so one hopes, go some way to providing her with a degree
of solace.
15.
Plaintiff
has, on the advice of her lawyers, submitted in her affidavit that an
amount of R800 000.00 as a global award for general
damages
would be apposite in the circumstances. An analysis of comparable
awards is necessary to test this submission, bearing in
mind the oft
stated caveat that no two cases are exactly similar;
See,
inter
alia
Van
Blerk JA in
Marine
& Trade Insurance Co Ltd v Goliath 1968(4) SA 392 (A)
at
333 G:
“
……
. comparison with other
cases though never decisive is instructive … comparison can only
be usefully undertaken where the circumstances
are clearly shown to
be
broadly
similar in all material respects
.”
(emphasis
added)
16.
Regrettably
the bald averment by the plaintiff regarding the amount of general
damages has not been motivated further at all by Mr
Haddad during the
course of his argument.
17.
In
Khaya
Sgatya v Road Accident Fund
,
unreported judgment, Eastern Cape Division case no 682/2000,
delivered on 4 July 2001, Jennett J awarded R800 000.00 for
general
damages to a 29 year old teacher who had sustained a fracture
dislocation of the cervical spine at the C5 level with resulting
paralysis
from the shoulders downwards, thus leaving the plaintiff a
permanent tetraplegic. The sequelae of the said injuries are broadly
similar to those in the present matter, namely:
a)
Mr
Sgatya is permanently confined to a wheelchair;
b)
He
is permanently unemployed;
c)
His
chances of recovery are nil;
d)
He
requires a fulltime attendant;
e)
He
frequently experiences marked pain in his shoulder;
f)
He
has faecal and urinary incontinence.
With
reference to two earlier cases where awards had been made on
comparable facts and circumstances, namely
Steenkamp
v Minister of Justice
(Corbett & Buchanan, The Quantum of Damages in Bodily and Fatal
Injury Cases, Vol I, p186) and
Pretorius
v Geldenhuys
(Corbett & Buchanan, The Quantum of Damages in Bodily and Fatal
Injury Cases, Vol I, p803), Jennett J awarded the sum
of
R800 000.00 for general damages. I accept as a reasonable
assumption that the award of R800 000.00 proffered by the
plaintiff herein on advice of her lawyers is based on the
Sgatya
case.
18.
The
plaintiff in
Kekae
v Road Accident Fund [2001] 2 All SA 37 (T)
was a 56 year old healthy male, the father of eight children, who was
employed as a driver. He sustained a fracture dislocation
of his L1
and L2 vertebrae with resultant paraplegia and head and abdominal
injuries. The main sequelae of these injuries were:
a)
Faecal
and urinary incontinence;
b)
Loss
of sensation from L4 downwards;
c)
Complete
loss of sexual function;
d)
Osteoporosis
in the pelvis, suffers from chornic causalgic pain in his right lower
limb;
e)
Diminished
intellectual capacity due to diffuse brain damage;
f)
Permanent
unemployability.
Chaitowitz
AJ awarded R220 000.00 for general damages.
19.
The
Sgatya
matter, supra, is virtually on all fours with the present matter as
regards general damages. While that award has been made more
than
six years ago and provision has to be made for the inflationary
effects on the value of money, I am of the view that a similar
award,
namely R800 000.00, would nevertheless be apposite in the
present matter. Mr Sgatya was a well qualified teacher and
led a
very active professional and social life. He was a keen tennis and
table tennis player and was furthering his studies to enhance
his
qualifications. In the present matter Ms Bens has a Matric
qualification and was employed on a casual basis as a stocktaking
clerk for 4 to 6 days per annum. She had aspirations of studying to
become an air hostess. In the circumstances, I am of the view
that
her situation is somewhat different to that of Mr Sgatya. A similar
award for general damages would consequently be proper
in these
circumstances.
20.
I
issue the following order:
Default
judgment is entered against the first defendant for:
1.
Payment
of the sum of R7 977 010.00.
2.
Interest
on the abovementioned sum at the rate of 15.5% per annum from the
date of this judgment to date of payment.
3.
Costs
of suit.
_____________
SA
MAJIEDT
JUDGE
FOR
THE PLAINTIFF : MR VERNON HADDAD
Elliot
Maris Wilmans & Hay, Kimberley
DATE
OF HEARING : 22 February 2009
DATE
OF JUDGEMENT :
29
February 2008