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[2007] ZAWCHC 93
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Meja obo Mpetsheni v Road Accident Fund (837/2006) [2007] ZAWCHC 93 (15 November 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
837/2006
DATE
:
15
NOVEMBER 2007
In
the matter between:
MORONTE
MEJA OBO S MPETSHENI
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
GOODMAN,
AJ
:
The
plaintiff in this matter sues in her capacity as a guardian of the
minor child Siyanda Mpetsheni, to whom I shall refer in this
judgment
as the minor.
The
claim arose out of a motor vehicle accident in which the minor was
involved as a passenger In the vehicle. This accident took
place on 8
February 2002. The minor at the time was 12 years of age.
The
defendant, the Road Accident Fund, defended the matter and, in
addition to a plea on the merits, delivered a special plea in
which
ft alleged that the plaintiff did not comply with certain regulations
in relation to the Act.
As
far as the defences on the merits are concerned, the allegations in
relation to the motor vehicle collision were put in dispute,
as were
the issues of negligence, injuries sustained by the minor and any
damages as might have been sustained.
At
the commencement of the hearing, the parties indicated to me that
agreement had been reached on a number of issues. The parties
handed
up a written document signed by the attorneys entitled "Admissions".
In this document the defendant indicated
it had conceded the merits
of the claim insofar as the collision was concerned and admitted that
it was liable to compensate the
plaintiff or the minor for 100% of
her proven or agreed damages. In addition, the defendant provided an
undertaking in terms of
section 17.4(a)
of the
Road Accident Fund Act
56 of 1996
, colloquially referred to in matters of this sort as the
undertaking. It was further admitted that the plaintiff had complied
with
all the statutory provisions as pleaded in her particulars of
claim.
As
far as specific aspects of the minor's injuries were concerned, there
was an admission from the defendant that the minor's scarring
had
been correctly described by Dr Marx, one of the experts whose
evidence was subsequently adduced by the plaintiff, in 4.3 and
4.4 of
his medico-legal report dated 23 April 2007.
The
Court was accordingly asked to adjudicate only upon the aspect of
general damages.
What
transpired in the collision was described in two of the expert
reports, that filed by Dr Marx and that filed by
Ms Burke, as well
as elaborated upon by the minor when she gave her
evidence.
Essentially
she was a rear seat
passenger
in a taxi vehicle, which vehicle was struck from behind by another
vehicle which was apparently in the act of overtaking.
The driver
from behind apparently struck the vehicle in which the minor was
travelling three times. This caused her vehicle, or
the vehicle in
which she was travelling, to be knocked over a bridge into shallow
water. The car landed upside-down and the minor,
together with others
in the vehicle, were trapped in the vehicle. A bystander knocked out
the rear window and assisted the minor
in escaping from the vehicle.
The
minor was taken by ambulance to the Khayelitsha Day Hospital where
lacerations on her body were cleaned, bandages
were
applied to the wounds, but she was left to walk home, which took
approximately 25 minutes. What the plaintiff alleged on behalf
of the
minor child in the particulars of claim is that the minor sustained a
laceration of the left elbow, a laceration of the
left thigh and
multiple other lacerations, and in addition alleged that details of
the injuries would appear from the relevant
medical and expert
reports which would be delivered in due course.
What
was claimed from the defendant were three categories of claims. First
of all, estimated past hospital and medical expenses
amounting only
to R300,00
t
estimated future medical and related expenses in an amount of R100
000,00, and general damages in the amount of R100 000,00. Although
the prayers in the particulars of claim refer to a payment of damages
in the sum of R160 300,00, the total, as I have indicated,
amounts to
R200 300,00.
The
undertaking which I have referred to covers the first two categories
of claims. It is accordingly only the question of general
damages
which falls to be assessed.
The
nature of the minor's physical injuries appears from the reports of
Dr Marx and Ms Burke, both of whom confirm their respective
reports
and in respect of both of whom only limited cross-examination was
posed.
From
Dr Marx's report, and I quote from paragraph 6 thereof, the following
appears:-
"The
minor experienced lacerations to her left elbow, her left upper thigh
and her right knee. The scars on her left thigh
bother her to the
extent that she tries not to expose her thighs."
Then
Dr Marx described an anterior chest pain and upper back pain with
shortness of breath. As it transpired during the course of
his
evidence and as reflected in his report, he stated it was unlikely
that this was related in any way to the trauma arising from
the
accident.
As
far as the specifics disclosed to Dr Marx on a clinical examination
are concerned, he described the scars on the left arm as
being three,
measuring one centimetre by a half a centimetre, situated behind the
left elbow. These were slightly kiloid in nature
and depigmented, but
cosmetically reasonable. In the lower limbs there was a one
centimetre by one centimetre circular scar over
the front of the
right knee. There was a further two centimetre by one centimetre scar
and a linear three centimetre by a half
a centimetre scar on the
front of the left thigh. It appeared that it was this latter scar
which was the most significant of all
the sequelae of the lacerations
sustained during the collision.
Dr
Marx described the minor from a psychological point of view in the
sense that he found there was no magnification of her symptoms,
she
displayed no abnormal illness, but was of good credibility.
He
recommended plastic surgical revision of the scars on the front of
her left thigh. He felt that the appearance could be improved
as
these were not kilo id scars, and undertaking to cover the costs of
this scar revision in his view would amount, cost-wise,
to no more
than six or eight thousand rand. He ventured the view that this could
be done under a local anaesthetic and probably
as an out-patient.
Although an orthopaedic surgeon, Dr Marx claimed that he had plastic
reconstructive surgery experience and this
was not put in dispute.
He
assessed the general damages of the minor from the physical point of
view as having been a very frightening experience for a
young girl.
He found, however, that the chest discomfort could not be attributed
to the accident.
From
a psychological point of view, his discussions with the minor's
grandmother, the plaintiff, confirmed that the minor was nervous
in
traffic and on the roads. This was corroborated both by Ms Burke, as
well as the minor herself.
Although
the minor complained of chest pain and shortness of breath, upon the
examination which Dr Marx conducted in April 2007,
he could not find
that this was in any way related to the collision. He was satisfied
that where clinical records reflecting treatment
obtained by the
minor on the day of the collision and three days later on 11 February
2002 referred to the fact that she was complaining
of a painful
chest, he considered this to be entirely appropriate in the sense
that often there were delayed feelings of bruising
and aches and
pains. However, he felt that if there had been a rib fracture, of
which there was no satisfactory evidence, this
would have cleared up
in a matter of weeks.
Dr
Marx did indicate that as far as his examination and investigation of
the minor was concerned, she was certainly aware of the
unsightly
appearance of the scars on her left thigh and no longer wore shorts
or bathing costumes. That was certainly her evidence
in court and
also was not challenged under cross-examination.
The
second witness, after the second expert witness cafled by the
plaintiff, was Ms Burke. She examined, assessed the minor on the
two
dates In August 2007. She gave extensive views on what she had
ascertained from such an assessment, incfuding the minor's
functioning after the accident, whfch exhibit considerable
achievements at school. She has, however, given birth to a son as a
result of a relationship with a Grade 12 pupil. She herself is now
in Grade 11.
Ms
Burke found that the current functioning of the minor was that she
could not run as fast as she used to, because she develops
chest
pain, she cannot carry heavy things, because it hurts her chest and
back, but no other difficulties were indicated from a
physical point
of view. The minor herself indicated in her evidence that she no
longer participated in school athletics, which
is something that she
did partake in prior to the accident.
The
upshot of Ms Burke's finding was that she considered there to have
been a few minutes of post-traumatic amnesia indicated by
the minor.
She found that the symptoms displayed by the minor were entirely
consistent with posttraumatic stress syndrome.
She referred in
particular to what she called clusters of factors, such as recurrent
dreams, the re-living of the event, feelings
of drowning and choking,
all of which - and avoidance of particular stimuli, such as driving
in a motor vehicle - she found all
of these to be symptomatic of a
post-traumatic stress disorder, rather than simple irritability
similar to that experienced by
many adolescents and teenagers. She
felt that if it had simply been a question of irritability, the mood
disorder would not have
displayed itself by having the other clusters
or factors to which I have made reference.
She
gave an assessment that she had no impression whatsoever that the
minor exaggerated her symptoms, nor did her family members.
Ms Burke
indicated she spoke to the grandmother, namely the plaintiff, on two
occasions, and there was no suggestion of an exaggeration
of
symptoms.
Her
recommendation was that the patient receive a psychiatric assessment
and counselling. She considered that medication was probably
necessary, and as far as psychiatric assessment was concerned, three
or four sessions would provide adequately, whereas counselling
for
perhaps six months once a week could afso be requisite. In addition,
she felt that counselling would assist the minor's attitude
towards
plastic surgery. During her evidence, the minor indicated an
unwillingness to undergo plastic surgery, even although the
prospects
are that it may be beneficial to the major scarring that she still
has on her upper thigh. It was stated by the minor
that she was
scared of this particular procedure. Ms Burke's evidence was this too
would be assisted were counselling to be addressed.
Ms
Burke was very firm that there had been a psychological fall-off
resulting from the collision and the sequelae. While these sequelae
had no particular impact on her physical functioning, certainly there
was a psychological effect in the form of the mood disorder
described. This could in no way, according to her, be attributable
merely to the hurly-burly of life and the onerous responsibilities
that she was confronted with, for instance by having a baby and by
being at school at the same time. The injuries and the trauma,
according to Ms Burke, certainly made the minor vulnerable and this
perhaps could also explain her seeking an inappropriate sexual
relationship when she was still at a young age, which in turn
resulted in her pregnancy and giving birth.
As
far an assessment of the minor is concerned, she gave evidence
slightly tentatively but again with no suggestion of any exaggeration
of her features or of the problems that had ensued. She was
articulate and is obviously comfortable in speaking English.
Generally
her evidence was not expansive and no doubt the plaintiff's
legal representatives felt that sufficient had been placed before the
Court and would be placed before the Court in the form of the expert
evidence.
The
approach from the defendant was to contest any suggestion that the
back and chest pains that the minor is now suffering from
was in any
way attributable to the collision. I am in agreement with that
approach. The only expert competent to make an assessment
in that
regard, Dr Marx, was of a similar view and accordingly one cannot
find that the present chest and back pains are in any
way
attributable to the accident. That, however, does not detract from
the fact that there was some chest bruising or chest pains
resulting
from the accident which is described in the clinical notes of 11
February 2002.
As
far as the minor's moodiness is concerned, the defence did attempt to
suggest that this was a result of a typical adolescent
or teenage
experience. I am satisfied on the basis of Ms Burke's evidence that
indeed the minor suffered from a post-traumatic
stress disorder, not
of any major consequence, but certainly one that does require
treatment as recommended by Ms Burke, and I
find such recommendation
appropriate in the circumstances.
It
is quite clear that for a 12 year old to have experienced what she
did, the accident itself, the vehicle overturning, lying in
a pool of
water, be it a river or a stream, being hauled through a window which
was broken by a bystander, sustaining lacerations
either as a result
of the collision or as a result of climbing through the broken
window, all must have been extremely traumatic
for her. There is no
suggestion that she was catered for by any adults at the time,
although certainly taken to the day hospital.
She was apparently left
to walk home on her own. I accept that it is something that she was
able to do and suggests that she was
not in an unfit state to do so.
However, for a child of that age to be obliged to undergo that kind
of experience and then be left
to walk home, which journey took
approximately 25 minutes, must have been of some significance to her
psyche. That has no doubt
continued to affect her and I am satisfied
that the evidence of Ms Burke satisfactorily describes what are
sequelae as a result
of the collision and injuries, both physical and
psychic as experienced from that collision.
Turning
to the issue which I am required to assess, namely appropriate
compensation by way of general damages, Mr Du Toit, who appeared
for
the plaintiff, referred me to certain cases which are naturally of
some interest and some help. They are, however, different
in nature
from the present case, as most cases indeed are. The three cases he
referred to in particular were
Mwedzi
v The Minister of Police, Swartz v The Minister of Police, and Maiiet
v Santam
.
all of them reported in the learned work of
Corbett
and Buchanan
.
The first two cases handed down awards which in today's terms
amounted to R29 000,00 each, while in the Majiet case an award of
some R65 000,00 was made. The latter, however, related to
psychological injuries sustained by a mother on witnessing the death
of her minor child, something quite different from that with which we
are today confronted. Mr Du Toit then submitted that an award
of
general damages in the amount of R50 000
r
00
would be reasonable in the present matter.
Ms
Coetzee naturally sought to highlight certain of the aspects of the
evidence. I have already referred to the fact that she relied
upon
the minor's having been able to walk home by herself after the
accident. That, in my view, is a double-edged sword, both beneficial
aspects thereof in favour of the plaintiff, as well as negative
aspects, and similarly with regard to the defendant.
Ms
Coetzee further suggested that the minor had not suffered any toss of
amenities of life. Clearly the inability to partake in
athletics is
one of them, but in general the minor does seem to be a fully
functioning individual, with rich potential which one
hopes one day
will fully be realised.
Ms
Coetzee then referred me in turn to three cases, that of
Richter,
Van der Westhuizen and Jooste, respectively 1963. 1979 and 1975
cases. These naturally were in small amounts even translated in
today's terms, and Ms Coetzee at the conclusion of her submissions
on
the quantum suggested that R20 000,00 was appropriate.
It
is of course in all cases difficult to equate particular facts of
this specific case with those facts in the decided cases. A
comparison with cases of considerable vintage equally is difficult to
apply and ! am mindful of the sentiments expressed in the
decision of
The
Road Accident Fund v Marunga, 2003(5) SA 164 (SA)
.
In that decision,
The
Honourable Judge Navsa, J A
made reference to an earlier decision of
Wright
v Multi-La teraf Vehicle Accident Fund, 1997
in which
Broom
D J P
stated
the following:-
"I
consider that when having regard to previous awards, one must
recognise that there is a tendency for awards now to be higher
than
they were in the past. I believe this to be a natural reflection of
the changes in society, the recognition of greater individual
freedom
and opportunity, rising standards of living and the recognition that
our awards in the past have been significantly lower
than those in
most other countries."
The
Supreme Court of Appeal in the
Merunga
decision relied upon and endorsed this particular sentiment. It
applied it to the facts of that case, emphasising in particular
the
curtailment of that plaintiff's enjoyment of life and the fact that
the injuries had occurred when he ought to have been, as
I quote, "in
the full bloom of youth".
Such
a consideration is certainly applicable in the present instance, and
even more so the minor in this case was a young girl,
12 years of
age, she is now approaching the full bloom of her youth with the
legacy of a lasting impairment. I do accept that that
impairment,
both the physical aspects and the psychological, can be alleviated
and one hopes will, with appropriate treatment,
be alleviated. That
should be addressed in relation to the undertaking that has been
given. I have to consider an appropriate award
to recompense her for
that loss which she has sustained, both from a pain and suffering
point of view and psychologically up to
now and for the future, to
the extent that she will have to await the culmination of the
treatment. Certainly for a woman and a
young girl, the nature of
the disfigurement that she has sustained is something of consequence
to her. It was not suggested
to her that she was being unreasonable
in not wishing to wear a bathing costume or not wishing to display
the scars on her upper
thighs to friends, although she indicated that
family members and some of her girl friends had in fact seen the
scarring. She did,
however, indicate that the father of her child,
with whom she maintained a good relationship, had not seen such
scars.
In
all the circumstances, I have obviously the obligation to be fair to
the minor child, to the plaintiff suing on her behalf, as
well as to
the defendant, I cannot arbitrarily make awards to ensure benefits
which are out of proportion to the damages that have
been sustained.
However, in the nature of things, one's assessment may strike the
observer as being arbitrary. I hope in this case
that my assessment
of the amount will not be so.
It
is a position somewhere between what the plaintiff's representative
suggested and what the defendant's representative suggested.
The
figure that I have in mind and which I shall award in respect of the
general damages, taking all aspects into account, including
what I
consider to be the probability that, both psychologically and
physically the minor's suffering will be alleviated through
appropriate treatment, is the sum
R30
000.00
.
As
far as costs are concerned, the plaintiff sought an order that the
defendant pay the plaintiff's costs, including the qualifying
expenses of the two experts whose evidence was adduced, namely Dr
Marx and Ms Burke, and that such costs be on the high court scale.
The
defendant, in turn, argued first that the plaintiff be ordered, in
the event that I should make an order with regard to the
quantum
which falls within the magistrate's court jurisdiction, the
plaintiff's legal representatives pay the defendant's costs
of suit.
Ms Coetzee was unable to refer me to any authority for such
proposition and I indeed know of none. As far as 1 am aware,
the
approach adopted by Courts when a party sues in the high court and an
eventual award is made within the magistrate's court
jurisdiction, is
to award that party magistrate's court costs unless there is good
reason for an exercise of a discretion, making
an award of high court
costs.
Ms
Coetzee, in the alternative, did ask that the costs to be awarded to
the plaintiff be those on the magistrate's court scale.
I did pose
the question whether at any stage the defendant had suggested that
the matter be transferred to the
magistrate's
court. No such suggestion had ever been made. I referred in the
earlier part of my judgment to the wide-ranging nature
of the
disputes that were evident on the papers and on the pleadings, both
in relation to the special plea as well as the disputes
on the merits
pertaining to the minor's injuries, sequelae and damages. There is
nothing before me to suggest that the concessions
which the defendant
made which were incorporated in the document entitled "Admissions"
were made some time ago, or that
the undertaking that was put forward
was made equally a lengthy period of time ago. It would appear that
these admissions and the
agreement reached took place either at the
doors of the couft or subsequent to the first date on which the
matter was enrolled,
which was this past Monday. The parties had to
await Tuesday before a judge was allocated.
Having
considered all the relevant issues pertaining to costs, the fact that
an undertaking has been given in relation to future
treatment and
accommodation and the like which the minor may incur for the purposes
of alleviating the sequelae of the injuries,
together with the amount
of R30 000,00 which I propose to award in respect of the quantum of
damages, I consider it appropriate
that the plaintiff did in fact
proceed in the high court. As indicated, her original claim was R200
000,00, that of course does
not redound to the plaintiff's
benefit.
Nevertheless I am satisfied that it is appropriate that high court
costs be the relevant scale.
In
the circumstances the order I make is the following:
THE
DEFENDANT IS OBLIGED TO PAY TO THE PLAINTIFF THE SUM OF R30 000,00
(THIRTY THOUSAND RAND) IN RESPECT OF THE GENERAL DAMAGES
THAT HAVE
BEEN CLAIMED.
Second,
THE
DEFENDANT SHALL PAY THE COSTS OF THE PLAINTIFF. INCLUDING THE COSTS
RELATING TO THE QUALIFYING FEES OF DR MARX AND MS BURKE
.
It
is so ordered.
The
Court will adjourn.
GOODMAN,
AJ