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[2024] ZANCHC 13
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Vass v Road Accident Fund (222/2011) [2024] ZANCHC 13 (16 February 2024)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 222/2011
Reportable:
YES/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter between:
AUDREY
CATHERINE VASS
Second Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
Coram:
Lever J
JUDGMENT
Lever
J
1.
Originally this claim against the Road Accident Fund (the Fund or
Defendant) had three claimants. For reasons
not material to this
decision, only the second plaintiff’s claim was to be
determined by this court.
2. In
short, the issues to be determined by this court relate to the
question of causation in respect of the second
plaintiff’s loss
of future earnings as well as the quantum of damages to be awarded
under certain heads of damages if damages
were to be awarded at all.
3. The
accident from which the second plaintiff’s claim arose occurred
on the 5 December 2006 at approximately
7:05pm on the road between
Victoria-West and Loxton.
4. The
second plaintiff testified that she was sleeping in the car before
the accident. That she lost consciousness.
When she regained
consciousness, she was lying in a field. After some time, an
ambulance came and transported her to a hospital
in Victoria-West.
After one day in Victoria-West Hospital she was transferred by road
to the Carnarvon Hospital.
5.
After the accident, the second plaintiff complained of severe pain in
her lower back. She also had a headache,
and she also had a bump on
the left front side of her head. Since the accident the second
plaintiff could not do certain movements
and could not stand for an
extended length of time. She had also become forgetful to the point
where she had to write notes to
herself which she posted on the
fridge to remind her to do important things. Her sleep patterns had
also become disrupted to the
point that it took her a long time to
get to sleep and she often woke up at 3 am and could not get back to
sleep and would read
a book when this occurred. These problems
manifested themselves after the accident. She did not suffer from any
of these problems
before the accident.
6. At
the commencement of the hearing of this matter, I was handed a signed
supplementary Rule 37 minute. The
said minute records an agreement in
terms of which: the issues before this court were defined; certain of
the expert evidence provided
on behalf of the second plaintiff was
placed before this court by agreement in the form of the expert
reports that were duly filed.
In these circumstances, such evidence
is accepted by this court.
7. It
is important to set out the material terms of this agreement, as set
out in the said Rule 37 minute. The
material terms of the said minute
read as follows:
“
1.
It is recorded that the parties have settled the claim of the Third
Plaintiff as per
the draft order to be handed into court.
2.
In respect of the Second Plaintiff’s claim the parties are
agreed that the following
expert reports are admitted as evidence
before court:
2.1
Dr LF Oelofse (orthopaedic surgeon) dated 15 September 2014, expert
bundle 2, record p 121
– 152;
2.2
Dr LF Oelofse, 14 June 2018 dated (sic), expert bundle 2, record p
191 – 218;
2.2(sic)
Mrs M Grobler (Occupational Therapist) dated 12 September 2016,
expert bundle 1, record p 47 – 84;
2.3
Mrs M Joubert (Occupational Therapist) dated 16 August 2019, expert
bundle 4, record p 351
– 375.
4.
With regards to the Second Plaintiff’s claim for loss of income
and earning
capacity:
4.1
The Defendant disputes, first and foremost, the casual connection
between the injuries sustained
and the loss suffered by the Second
Plaintiff.
4.2
In the event that Second Plaintiff has established causality:
4.2.1 The
parties are agreed that, should the Honourable Court accept the
expert evidence of the industrial psychologist,
Mrs S v Jaarsveld,
the Second Plaintiff’s pre and post-accident career paths as
well as her injured and uninjured earnings,
as calculated by Munro
actuaries at p 382 of expert bundle 4, save for the contingencies to
be applied, are accepted by the Defendant.
4.2.2 In the
event that the Honourable Court does not accept the evidence of the
industrial psychologist, then and in
that event the parties are
agreed that Second Plaintiff’s career path and her injured and
uninjured earnings, save for the
contingencies to be applied, are as
follows:
Uninjured and Injured
past income - R982 300,00
Uninjured and Injured
future income – R314 200,00
5.
The parties are agreed that contingencies to be applied are the
prerogative of
the court.”
8. In
addition to the evidence formally placed before the court in terms of
the above agreement, the second plaintiff
herself testified, the
evidence of Dr Van Aswegen the neurologist was led, as well as the
evidence of the industrial psychologist
Mrs Van Jaarsveld. The
defendant did not lead any evidence to countervail the evidence led
on behalf of the second plaintiff.
9. It
is both useful and necessary to summarise the evidence admitted by
the defendant in accordance with the
above-mentioned agreement. The
said summary will provide context and a useful backdrop against which
the evidence of the plaintiff,
Dr van Aswegen and Ms van Jaarsveld
must be assessed.
10. Dr Oelofse the
orthopaedic surgeon, diagnosed the second plaintiff with a head
injury and a lumbar spine injury. Dr Oelofse
described the lumbar
spine injury as an L5 - S1 disc injury with an L3 – S1 facet
joint injury with facet arthrosis and chronic
pain and muscle spasms.
11. Dr Oelofse pointed
out that the radiological examination confirmed that there was a loss
of lordosis on the lateral view and
there was an early narrowing of
the L5 – S1 invertebral disc space with facet joint
degeneration at L3 – S1.
12. Dr Oelofse summarised
the second plaintiff’s symptoms during 2018 as: A nagging and
permanent pain in her lower back that
she experienced on a daily
basis; She struggles with recurring muscle spasms in her lower back.
This decreases her already limited
abilities, such as bending
forward, sitting for long periods, working hunched over a computer
for long periods; Oral pain medication
provides only limited relief
from the pain; Due to severe pain in her lower back she has to
constantly change positions when sleeping
at night; She has no
complaints regarding any radicular symptoms.
13. Dr Oelofse
recommended conservative treatment with non-steroidal
anti-inflammatory drugs and analgesics, physiotherapy with
long term
rehabilitation and biokinetics. Dr Oelofse expressed the view that if
the treatment should fail or not offer relief from
the pain, the
second plaintiff would need facet joint blocks in theatre. Dr Oelofse
pointed out that there remained a possibility
that the aforementioned
treatments would not assist and that her symptoms would intensify and
she would need to be admitted to
hospital for intensive conservative
treatment and rhizotomy in theatre. Dr Oelofse also foresaw the
possibility that in the second
plaintiff’s total lifespan her
lumbar spine would degenerate to end stage spondylosis, in which case
a spinal fusion would
be required.
14. Regarding the second
plaintiff’s head injury Dr Oelofse diagnosed a head injury with
chronic headaches and chronic muscle
spasms with residual
neurological symptoms including loss of concentration, loss of
short-term memory, forgetfulness and psychological
trauma involving
emotional outbursts, behavioural changes and feelings of anxiousness.
However, in regard to the severity of these
injuries, Dr Oelofse
deferred to the opinion of a neurosurgeon.
15. Dr Oelofse expressed
the view that the second plaintiff’s orthopaedic injuries meant
that, as far as employment and her
domestic environment goes, she
would have to be accommodated in a permanent light duty or back
friendly environment as determined
by an occupational therapist.
16. Dr Oelofse also
expressed the opinion that as a result of second plaintiff’s
orthopaedic injuries, especially her lumbar
spine injury had a
profound effect on the second plaintiff’s amenities of life,
productivity and working ability and will
continue to do so in
future. He was also of the view that the second plaintiff was unable
to continue as manager of her own coffee
shop due to the debilitating
effects of her injuries on her physical abilities.
17. Dr Oelofse also
expressed the view that the second plaintiff’s injuries and the
disabilities that flowed from such injuries
would be unfairly
prejudicial to her if she were to compete in the open job market for
employment.
18. Dr Oelofse also held
the opinion that were it not for the accident and the injuries
suffered as a result thereof, the second
plaintiff would have been
able to work until she was 65 years old. However, with the injuries
suffered from the accident, especially
the lumbar spine injury, the
second plaintiff suffered certain deficits and even with successful
treatment of her lumbar spine
injury the said deficits would remain.
19. Dr Oelofse also
referred to certain literature which showed the correlation between
the development of chronic pain and its
effect on retirement age. On
this basis Dr Oelofse expressed the view that the second plaintiff’s
retirement age would be
brought forward by 2 to 3 years. Finally, Dr
Oelofse said that under no circumstances should the second plaintiff
be allowed to
do any form of physical labour.
20. As set out above, the
evidence of Dr Oelofse was admitted unchallenged in terms of the
agreement referred to above.
21. The other evidence
admitted by the defendant in terms of the said agreement is the
expert report of Ms Marli Grobler and a follow
– up report by
Ms Marlene Joubert, both of whom are occupational therapists. The
relevant aspects of these reports were dealt
with by the industrial
psychologist, Ms S van Jaarsveld and encapsulated in her report which
will be dealt with hereunder.
22. The neurosurgeon, Dr
van Aswegen, gave evidence before this court. In summary, his
evidence was to the effect that: Prior to
the accident, the second
plaintiff’s history as presented to him showed no history of
back pain, headaches, emotional swings
or changes, insomnia or
forgetfulness; The relevance of the pre-accident history is that the
lack of these complaints prior to
the accident and their presence
after the accident shows that the accident is the most probable
underlying cause of these complaints;
The fact that the second
plaintiff was ejected from the vehicle due to the relevant accident
and that she lost consciousness for
an undetermined period showed
that she had experienced a sharp acceleration and an equally sharp
deceleration; Dr Van Aswegen used
the analogy of a moulded jelly on a
plate covered in custard to illustrate that if the plate were
accelerated and decelerated the
jelly and the custard would react
differently due to the differences in their relative densities. He
then testified that the different
densities of the white and grey
matter in the brain would react in the same way as the custard and
jelly. The acceleration and
deceleration of these substances with
different densities within the human skull would cause an
axonal shearing between the
plaintiff’s grey and white matter
in her brain.
23. In Dr Van Aswegen’s
opinion, having regard to the nature of the injury, the second
plaintiff’s acute initial medical
management, progress and
follow up treatment, her pre-morbid status and functioning and her
current complaints of headache, forgetfulness,
insomnia and backache,
the second plaintiff suffered a mild traumatic brain injury (mild
TBI
).
24. Dr Van Aswegen
testified that in the second plaintiff’s case there was an
increased risk of dementia to a degree that
is both statistically and
clinically relevant.
25. Dr Van Aswegen
testified that both the severity and frequency of such headaches may
vary and does not follow a set pattern.
In his view this was
consistent with a mild TBI.
26. Dr Van Aswegen
applied the World Health Organisation Disability Assessment Schedule
2.0 to the second plaintiff and the end
result from this test was
that the second plaintiff suffered a 24.90% disability.
27. Dr Van Aswegen is the
Head of the Department of Neurosurgery at the University of the Free
State. He came across as a thorough
and thoughtful professional. He
is clearly an expert in his field. He presented his evidence in a
factual and forthright manner.
There wasn’t a hint of Dr Van
Aswegen: overselling the second plaintiff’s case; being an
advocate for the second plaintiff;
exaggerating the symptoms or the
prognosis of the second plaintiff. In short, his evidence in both its
quality and its content
was what a court would expect from an expert
in his field.
28. The defendant did not
put up its own expert in the field of neuro – surgery. Dr Van
Aswegen was cross – examined
by Mr Mogano who appeared for the
defendant in this matter. The said cross – examination did not
shake the clinical observations
made by Dr Van Aswegen or the
conclusions and opinions that flowed from such observations.
29. The evidence of Dr
Van Aswegen on the pre – morbid condition of the second
plaintiff, the description of the accident
and the post –
accident symptoms was consistent with the evidence of the second
plaintiff. The second plaintiff gave evidence
and was cross examined
by Mr Mogano. Save for a minor inconsistency on the frequency of the
headaches suffered, the second plaintiff’s
evidence on these
aspects was not materially shaken by such cross – examination.
As Dr Van Aswegen testified with a mild
TBI there would be no
consistent pattern to which the frequency and severity of these
headaches would conform. This is why I consider
it a minor and non –
material inconsistency, it would depend on when the second plaintiff
was being questioned about the
frequency of such headaches as to how
she would answer that question.
30. In these
circumstances I accept the expert evidence and opinions expressed by
Dr Van Aswegen.
31. Ms Van Jaarsveld, an
industrial psychologist, gave expert evidence on behalf of the second
plaintiff. Ms Van Jaarsveld evaluated
the second plaintiff on two
occasions, being the 13 September 2016 and the 29 June 2020. She
delivered an updated report on the
29 April 2021.
32. In her reports, Ms
Van Jaarsveld summarised the second plaintiff’s particulars
relating to her level of education, her
family structure and
dynamics, her present complaints and occupational history. Save for
one minor aspect relating to her occupational
history, which will be
examined in greater detail below, her expert evidence coincided in
all material respects with the evidence
given by the second
plaintiff.
33. Ms Van Jaarsveld
testified that if one has regard to the second plaintiff’s pre
– accident income, her work experience
and employment history
and the fact that she was self employed as the co – owner of a
coffee shop, it can be assumed that
had the accident not taken place
she would have remained self – employed until retirement age
with earnings equivalent to
her income at the time of the accident
with annual inflationary increases.
34. Ms Van Jaarsveld
testified that self – employed people usually work well beyond
the ordinary retirement age of 65 for
as long as their health allows
them to continue working.
35. Ms Van Jaarsveld
expressed the opinion that if it were not for the accident, the
second plaintiff even if she lost her coffee
shop due to increased
competition, would have been able to obtain alternative employment in
a similar capacity as a manager of
a restaurant or coffee shop.
36. Ms Van Jaarsveld
referred to the opinions expressed by Dr Oelofse, Dr van Aswegen, and
both occupational therapists being Ms
Grobler and Ms Joubert, that if
one just focuses on the physical requirements the second plaintiff
would be able to perform sedentary
work in a sympathetic environment
with the necessary accommodations being made for the second
plaintiff’s physical limitations.
37. However, Ms Van
Jaarsveld testified that one also has to take into account the second
plaintiff’s work experience and
qualifications. Together with
the opinion of Dr Oelofse that the second plaintiff should not be
allowed to undertake physical labour.
As well as the opinion of Dr
Van Aswegen that the second plaintiff suffered a mild TBI with
symptoms of forgetfulness and chronic
headaches. Ms Van Jaarsveld
points out that it follows from these factors and opinions that the
second plaintiff will not be able
to compete successfully in the open
labour marked for a clerical position.
38. Ms Van Jaarsveld’s
holistic approach to the second plaintiff’s post –
accident income potential is that second
plaintiff is functionally
unemployable.
39. It was further Ms Van
Jaarsveld’s position that the evidence suggests that the second
plaintiff was, as a matter of fact
accommodated post – accident
by a sympathetic employer. In this regard she referred to the fact
that second plaintiffs husband
took over some of her tasks and
allowed her to work at her own pace. Her husband, as co – owner
of the coffee shop, allowed
her to take breaks as and when she
needed.
40. Further, Ms Van
Jaarsveld pointed out that an additional assistant was employed after
the accident because the second plaintiff
could not perform the tasks
connected to her position as co – owner of the coffee shop
which she performed prior to the accident.
Ms Van Jaarsveld also
pointed out that this appointment of an additional assistant would
have been a factor in the second plaintiff’s
coffee shop being
able to be profitable and compete with similar businesses in the same
area.
41. Ms Van Jaarsveld was
challenged during cross – examination about the fact that she
testified that the second plaintiff
was unemployed during the period
2015 to September 2019, whereas the second plaintiff testified that
time she assisted a certain
Ms Vera with domestic tasks.
42. The second plaintiff
testified that she only assisted Ms Vera for one or two days per
week, but that she could not remember
the frequency, nor could she
recall the remuneration she received from this work. When the second
plaintiff was challenged on this
aspect during cross-examination, she
said she did not regard this as permanent employment.
43. From the fact that
the second plaintiff’s evidence in regard to the frequency of
assisting Ms Vera and the remuneration
she received was so sparse and
sketchy, it suggests that in the context of the second plaintiff’s
working life that this
was a very small and insignificant part of her
working life.
44. Ms Van Jaarsveld’s
evidence was also that the information given to her by the second
plaintiff in this regard was so sketchy
and limited that it is almost
negligible.
45. In relation to this
employment with Ms Vera the sketchy details, plus the nature of such
work and its relative short duration
and Ms Van Jaarsveld’s
failure to deal with such employment, seen in its proper context,
would have no material effect on
Ms Van Jaarsveld’s report and
her conclusions reached therein. In the light of Dr Oelofse’s
report that her physical
challenges showed she was not suited to such
domestic work, it is more a sign of the second plaintiff’s
desperation due to
her circumstances. If anything, this is a
consideration when determining the contingencies to be applied to any
damages that might
be awarded.
46. The defendant did not
secure the services of an industrial psychologist to refute or
challenge the views held and the conclusions
reached by Ms Van
Jaarsveld. Ms Van Jaarsveld did not abuse her position as an expert
witness before this court. Her conclusions
and reasons for such
conclusions appeared reasonable to this court. There was nothing
before this court that would place her credibility
in question. In
these circumstances, I accept the evidence of Ms Van Jaarsveld.
47. The second
plaintiff’s evidence was materially in line with the contents
of the expert reports.
48. The second plaintiff
did not create the impression that she was manufacturing evidence or
that she was overstating the extent
of her injuries. The minor lapses
that emerged from her evidence were not material and are in any event
consistent with the mild
TBI diagnosed and assessed by Dr Van
Aswegen. In these circumstances, I also accept the evidence of the
second plaintiff.
49. The defendant did not
appoint any experts. As already stated, the defendant did not lead
any evidence in this trial. The defendant
contented itself with
cross-examining the second plaintiff and the experts called to give
evidence on her behalf.
50. Then defendant argued
its case. In accepting the evidence of Dr Oelofse, the orthopaedic
surgeon and the occupational therapists,
Ms Grobler and Ms Joubert,
the defendant accepted that the second plaintiff had suffered a loss
of earning capacity as a result
of the accident. This is the effect
of that evidence, and this is especially evident in the report of Dr
Oelofse. This satisfies
the ‘but for’ test in relation to
the loss of earning capacity.
51. The fact that the
defendant accepts that there has been a loss of earning capacity is
evident not only from the acceptance of
the evidence of Dr Oelofse
and the two occupational therapists but is also emerges from the
Heads of Argument filed by Mr Mogano
on behalf of the defendant. This
emerges from paragraph 19 of the said Heads of Argument which reads:
“
19.
According to Ms S van Jaarsveld, Industrial psychologist, the
plaintiff sustained loss of earnings immediately
after the accident
in the year 2006. Ms Van Jaarsveld testified that the injuries
sustained by the plaintiff from the accident
reduced her capacity to
work. This contributed to the Plaintiff (sic) Coffee shop losing
competition against other competitors
(sic).
We
submit that the basis is incorrect as it is common cause that because
of the Plaintiff’s reduced capacity to work after
the accident
the Coffee Shop employed an extra person to assist.”
[1]
(emphasis as supplied by Mr Mogano)
52. This foreshadows the
defendant’s argument, which goes further to argue that the
reason the second plaintiff’s coffee
shop closed was because of
increased competition from other similar businesses in the area.
Therefore, Mr Mogano argued there was
no financial loss as a result
of the accident.
53. This latches onto the
evidence that emerged from the trial in an opportunistic fashion.
However, in doing so, the defendant
overlooks two important
considerations.
54. Firstly, the second
plaintiff and the relevant coffee shop business had to incur the
extra expense of employing an extra assistant
to do the work that the
second plaintiff could no longer cope with. This extra expense meant
that the relevant coffee shop would
struggle to compete with the
other restaurants and/or coffee shops competing for business in the
same area. This was the evidence
of Ms Van Jaarsveld. This evidence
of Ms Van Jaarsveld was not challenged by the defendant in
cross-examination.
55. Secondly, this
argument advanced by the defendant also overlooks the fact that had
there been no accident and second plaintiff
had not had her
capacities reduced by virtue of such accident, in the event that the
coffee shop closed, for whatever reason, second
plaintiff would have
been able to obtain an equivalent position as a manager of a
restaurant/coffee shop. By virtue of the evidence
of the deficits
suffered by the second plaintiff as set out in Dr Oelofse’s
report and the evidence of Dr Van Aswegen, this
is no longer
possible. The uncontested evidence is that the second plaintiff can
simply no longer do the work required for such
position.
56. In these
circumstances the defendant’s argument cannot be sustained. It
cannot be and is not a defence to the second plaintiff’s
claim.
57. Accordingly, second
plaintiff has established causality and is entitled to the damages as
calculated by Munro Actuaries and
referred to in paragraph 4.2.1 of
the supplementary Rule 37 minute quoted above. This leaves the
question of the contingencies
to be applied to these damages as well
as the quantum of the general damages to be awarded to the second
plaintiff.
58. In paragraph 5 of the
supplementary Rule 37 minute the parties have agreed that the
contingencies to be applied to the calculation
for the loss of
earning capacity is the prerogative of this court.
59. The scenarios in
which contingencies have to be applied in the context of this case
are the “past uninjured earnings”
in relation to the
“past injured earnings”. Then the “future
uninjured earnings” in relation to the
“future injured
earnings”.
60. The “past
uninjured earnings” relate to that period where but for the
accident the second plaintiff would have continued
along her career
path undisturbed from the date of the accident until the date that
her claim is formulated and prosecuted. This
entails a projection of
what her career path would have been and what she would have earned
had that path been followed. Here there
are fewer variables, and they
are less uncertain than projecting for the future. Nevertheless,
variables remain, and they must
be catered for by applying
contingencies. On the facts of the plaintiff’s case and on this
aspect of the plaintiff’s
case in the calculation of the value
of the loss of income involved I think a contingency of a 5% (five
per cent) deduction would
be reasonable and appropriate.
61. The “past
injured earnings” relate to actual earnings from the date of
the accident until such time as the second
plaintiff’s claim
was formulated and prosecuted. As actual earnings in that period are
being dealt with it would be inappropriate
and indeed prejudicial to
the defendant to reduce that amount by applying a contingency to such
amount. Stating the obvious, the
loss of past earnings is established
by deducting the actual earnings for this period from the projected
earnings had the second
plaintiff continued along her career path
undisturbed by the accident. This is why it is appropriate to apply a
0% (zero percent)
contingency to the past injured earnings.
62. The “future
uninjured earnings” being for the loss of income for the period
from the date the second plaintiff’s
claim is formulated and
prosecuted until the end of the second plaintiff’s working
life. Projections into the future involve
assumptions that may or may
not eventuate. None of us have a crystal ball or other means to
determine what the future holds. Hence
for this period it would be
appropriate to deduct a larger contingency to cater as far as is
possible for those contingencies arising.
On the facts of the second
plaintiff’s case, I think on this aspect of the second
plaintiff’s claim for loss of earnings
a 15% contingency to be
deducted from the amount calculated under this aspect of ascertaining
the second plaintiff’s loss
of income would be appropriate and
reasonable.
63. In this case the
second plaintiff was not earning an income from the date her claim
was formulated and prosecuted. In these
circumstances it would be
appropriate to apply a 0% (zero percent) contingency to “future
injured earnings”.
64. Applying these
contingencies as postulated in paragraph 4.2.1 of the supplementary
Rule 37 minute as was done by Munro actuaries
renders a total loss of
earnings for the second plaintiff in the amount of R728 355,00 (seven
hundred and twenty-eight thousand
three hundred and fifty-five Rand).
This is the amount that will be awarded to the second plaintiff in
respect of the claim for
loss of earnings.
65. In respect of general
damages Mr Mogano for the defendant argued that the second plaintiff
only suffered a narrowing of L5 that
the authorities cited on behalf
of the second plaintiff dealt with fractures of the spine. That
therefore the Fund does not offer
compensation. In respect of the
mild TBI Mr Mogano submitted that the neurosurgeon himself classified
it as mild and the fund does
not compensate for that.
66.
On the
first argument Mr Mogano is wrong. Mr Zeitsman SC who appeared for
the plaintiff cited the case of Ramolobeng v Lowveld Bus
Services
(Pty) Ltd
[2]
where the spinal
injuries were not in respect of fractures. In that case the court
awarded damages in the amount of R555 000.00
(five hundred and fifty
thousand Rand) in 2015, which translates to R764 000.00 (seven
hundred and sixty-four thousand Rand) in
2022. In any event the
admitted evidence of Dr Oelofse was that as a result of the narrowing
of the second plaintiff’s L5
she suffered serious disabilities.
The risks of degeneration were clearly a concern for Dr Oelofse.
67. In respect of the
second argument raised by Mr Mogano in respect of the mild TBI that
this is a mild injury and not a serious
disability. In the first
place looking at injuries individually assists in evaluating the
extent of the disability of the claimant,
but that is not how general
damages are assessed. General damages are assessed by looking at all
the injuries and assessing their
overall impact on the claimant. It
is for this reason that the decisions of other courts in relation to
prior awards for general
damages are essentially just a guide. Few
claimants ever have precisely the same injuries or combination of
injuries.
68.
In respect
of the mild TBI Mr Zietsman referred the court to the matter of
Mtshali v The Road Accident Fund
[3]
here there was also a mild TBI and the court in 2017 awarded general
damages in the amount of R850 000.00 (eight hundred and fifty
thousand Rand). This translates in 2022 terms to an amount of R991
000.00 (nine hundred and ninety-one thousand Rand).
69. Considering the
undisputed medical and expert evidence relating to the second
plaintiff the overall impact of these two injuries
is significant.
Using the two cases referred to as a guide and after the available
evidence is taken into account, I am of the
view that R800 000.00
(eight hundred thousand Rand) is an appropriate award in respect of
general damages.
70. The last issue is the
issue of costs. There is no reason why costs should not follow the
event. However, second plaintiff has
asked for the costs of Senior
Counsel. At the start of the proceedings Mr Zeitsman handed up a
draft order reflecting certain agreements
between the parties and
leaving blank the amounts that would flow from the questions that I
was asked to adjudicate. This draft
order provides for the costs to
include the costs of Senior Counsel. Mr Mogano did not object to
this. It is on this basis that
I am prepared to include the costs of
employing Senior Counsel.
Accordingly,
the following order is made:
BY
AGREEMENT BETWEEN THE PARTIES the following order is made in respect
of the Third Plaintiff:
1.
Payment by the defendant to the Third Plaintiff in full and final
settlement of her claim for general damages
and loss of income
arising from a motor collision which occurred on the 5 December 2006
(“the motor vehicle collision”)
in the sum of R1 000
000.00 (one million Rand) which amount is compiled as follows:
1.1
R500 000.00 (five hundred thousand Rand) in respect of general
damages;
1.2
R500 000.00 (five hundred thousand Rand) in respect of past and
future loss
of income.
2. The
defendant is ordered to furnish the Third Plaintiff with an
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
, for 100% of the costs of the future accommodation of
the Third Plaintiff in a hospital or nursing home or the treatment of
or
the rendering of a service or the supplying of goods to the Third
Plaintiff arising out of the injuries sustained by her in
the
motor collision mentioned above, in terms of which undertaking the
Defendant will be obliged to compensate her in respect of
the said
costs after the costs have been incurred and on proof thereof.
AFTER
HAVING CONSIDERED THE EVIDENCE OF RECORD the following order is made
in respect of the Second Plaintiff:
3.
Payment by the Defendant to the Second Plaintiff in the sum of R1 528
355.00 (one million five hundred and
twenty-eight thousand three
hundred and fifty-five Rand), which amount is compiled as follows:
3.1 R800 000.00 (eight
hundred thousand Rand); and
3.2
R728 355.00 (seven hundred and twenty-eight thousand
three hundred
and fifty-five Rand).
4. The defendant is
ordered to furnish the Second Plaintiff with an undertaking in terms
of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for
100% of the costs of the future accommodation of the Second Plaintiff
in a hospital or nursing home or the treatment of or
the rendering of
a service or the supplying of goods to the Second Plaintiff
arising out of the injuries sustained by her
in the motor collision
mentioned above, in terms of which undertaking the Defendant will be
obliged to compensate her in respect
of the said costs after the
costs have been incurred and on proof thereof.
THE
FOLLOWING ORDER IS MADE WITH RESPECT TO THE SECOND AND THIRD
PLAINTIFFS (hereinafter “the plaintiffs”):
5. Payment of
the amounts referred to in paragraphs 1 and 3 above to be made into
the following bank account:
HONEY
ATTORNEYS – TRUST ACCOUNT
NEDBANK
– MAITLAND STREET BRANCH, BLOEMFONTEIN
BRANCH
CODE 1[...]
ACCOUNT
NO: 1[...]
REFERENCE:
H[...]
6. If the
Defendant does not, within 180 days (one hundred and eighty) days
from the date on which this order is handed
down, make payment of the
capital amounts the Defendant will be liable for the payment of
interest on such amounts at the rate
of 9% (the statutory rate per
annum) compounded and calculated 14 (fourteen) days from the date of
this order.
7. The
Defendant to pay the Plaintiffs’ taxed or agreed party and
party costs on the High Court scale, until the
date of this order,
including but not limited to the costs set out hereunder:
7.1 The reasonable
qualifying and reservation fees and expenses (if any) of the
following experts:
7.1.1 Drs Van
Dyk and Partners (radiologists);
7.1.2 Drs
Burger Radiologists Inc (radiologists);
7.1.3 Dr LF
Oelofse (orthopaedic surgeon);
7.1.4 Dr A
van Aswegen (neurosurgeon);
7.1.5 Mrs M
Joubert of Rita van Biljon Occupational Therapists;
7.1.6 Ms A
Grebe of Rita van Biljon Occupational Therapists;
7.1.7 Mrs M
Grobler of Rita van Biljon Occupational Therapists;
7.1.8 Ms S
van Jaarsveld (industrial psychologist);
7.1.9 Munro
Forensic Actuaries; and
7.2 The cost of senior
counsel.
8. In the
event that costs are not agreed:
8.1 The Plaintiffs shall
serve a notice of taxation on the Defendant’s attorney of
record; and
8.2 The Plaintiffs shall
allow the Defendant fourteen (14) court days to make payment of the
taxed costs.
Lawrence Lever
Judge
Northern Cape High Court,
Kimberley
Representation:
For
The 2
nd
& 3
rd
Applicant:
Adv
PJJ Zietsman (SC)
Instructed
by:
Haarhoffs
Inc.
For
The Respondents:
Mr
A Mogano
Instructed
by:
Office
of the State Attorney.
Date
of Hearing:
01
December 2022
Date
of Judgment:
16
February 2024
[1]
Although Mr Mogano refers to plaintiff, in the context of the
pleadings he is in fact referring to the second plaintiff.
[2]
[2015] ZAGPPHC 31 (3 February 2015).
[3]
(23918/2013)[2017] ZAGPPHC 868 (22 March 2017).