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[2024] ZAFSHC 354
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Zietsman v Road Accident Fund (4032/2020) [2024] ZAFSHC 354 (30 October 2024)
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
CASE
No.:4032
/2020
In the matter between:
JACQUES
ZIETSMAN;
Plaintiff
And
ROAD
ACCIDENT FUND
;
Defendant
Coram: Van
Rhyn J
Heard: 17
September
2024
Delivered: 30
October 2024
ORDER
1.
The Defendant shall pay to the Plaintiff the
amount of
R8 346 576.22 (EIGHT MILLION THREE
HUNDRED AND FORTY-SIX THOUSAND FIVE HUNDRED AND SEVENTY-SIX THOUSAND RAND AND
22 CENTS)
in respect of the Plaintiffs claim against the Defendant for the
following heads of damages:
Past
Hospital and Medical Expenses: R1 409 676.22
Past and Future Loss of Earnings/Earning
Capacity: R5 236 900.00
General Damages: R1 700 000.00
2. The aforesaid amount
shall be
paid into the trust account of Plaintiffs attorney, particulars thereof being
as follows:
DSC Attorneys
First National Bank
Account number:6[
]
Branch code: 210651
3. The
Defendant shall pay interest on the aforesaid amount at the prescribed rate of
mora
interest for arrears debt, in terms of the
Prescribed Rate of Interest Act, 55
of 1975
, calculated 14 (fourteen) days from date of this order being granted,
but only in the event that the said amount is not paid within
180 days of date
of this order.
4
.
The Defendant is to furnish an undertaking to the Plaintiff
in terms of
s 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for 100% of
the future accommodation of the Plaintiff in a hospital or nursing home or the
treatment of, or the rendering of a
service or the supply of goods to him
arising out of injuries sustained by him in a motor vehicle accident on 2 April
2018
in terms of which undertaking the Defendant will be obliged to
compensate him in respect of the said costs after the costs have been
incurred
and on proof thereof.
5.
The
Defendant shall pay the Plaintiffs taxed party and party costs on High Court
scale to date of this order, including for sake
of clarity, but not limited to,
the costs of the plaintiffs attorneys, DSC Incorporated in Cape Town and the
correspondent attorneys
in Bloemfontein, including the attendances of candidate
legal practitioner(s) where relevant, as well as other costs set out hereunder,
which costs will be subject to the discretion of the Taxing Master.
6. The Defendant shall pay the taxed or
agreed fees and qualifying expenses, reservation fees and all costs attached to
the
procurement of the medico-legal reports and other reports listed hereunder,
including addendum reports where rele
vant as well as X-rays and any
other related costs. The latter costs shall include the costs of attending all Plaintiffs
medico-legal
examinations, the amount of which will be in the discretion of the
Taxing Master
following:
6.1
Full qualifying fees of the following experts:
6.1.1 Dr
J Reid (Neurologist)
6.1.2 Dr
T le Roux (Orthopaedic Surgeon);
6.1.3 Mignon
Coetzee (Clinical & Neuropsychologist);
6.1.4 Dr
Keir le Fèvre (Psychiatrist);
6.1.5 Dr
Dale Ogilvy (Speech & Language Therapist);
6.1.6 Marleen
Joubert (Occupational Therapist);
6.1.7 Liza
Hofmeyer (Counselling Psychologist & Human Resources Consultant);
6.1.8 Willem Boshoff (Actuary Munro
Forensic Actuaries).
7.
The Defendant
shall pay the taxed or agreed fees of Plaintiffs senior counsel, where so
employed, on High Court Scale C.
8. The Defendant shall pay the actual
travelling costs of the Plaintiff, Plaintiffs attorney, counsel and two (2)
expert
witnesses in respect of travel from Cape Town to Bloemfontein and back
for the trial
on 17 and 18 September 2024 as allowed by
the Taxing Master.
9. The Defendant shall pay the taxed or
agreed fees of the Plaintiffs accommodation and related costs as well as that
of
Plaintiffs attorney, counsel and two (20 expert witnesses in respect of the
trial on 17 and 18 September 2024 as allowed by the
Taxing Master.
10 The Defendant shall pay the costs
related to the
Rule 37(8)
Conferences.
11. In the event that costs are not agreed
between the parties, the Plaintiff shall serve the Notice of Taxation on the
Defendants
attorney of record.
JUDGMENT
[1]
The
plaintiff, Jaques Zietsman, an adult male born on 4 July 1975, instituted
action against the defendant
in terms of the provisions of the Road
Accident Fund Act
56 of
1996
(the RAF Act) for
the payment of damages as a result of
injuries sustained arising from a motor vehicle accident which occurred on 2
April 2018 on
the N3 between Villiers and Warden. In his particulars of claim
the plaintiff averred that a collision occurred between a red Toyota
motor
vehicle bearing
registration letters and -number HLF
[
]
(the insured motor vehicle), driven by Sihle Michael Cele (the insured
driver) and a silver Toyota Corolla bearing registration
letters and -number NT6[
]
driven by the plaintiff.
[2]
The issue of liability (merits) has been
resolved in favour of the plaintiff with the defendant undertaking to pay 100%
of plaintiff's
proven or agreed damages.
The
future medical and hospital expenses have also been settled and the court was
provided with a draft order in terms whereof the
defendant is to furnish the
plaintiff with an undertaking in terms of the provisions of section 17(4)
(a)
of the RAF Act for 100% of the costs of the future accommodation of the
plaintiff in a hospital or nursing home or the rendering
of future medical
treatment or the supply of goods arising from the injuries sustained in the
motor vehicle accident.
[3] The issues remaining in dispute are:
(a) the quantum of the claim for past hospital
and medical expenses;
(b) the quantum of the claim for loss of
earnings/earning capacity; and
(c) the quantum of the claim for general damages.
[4] This matter was certified trial ready on 20 May
2024 and was enrolled for trail for two days. At the commencement of the
matter
the defendant requested a postponement of the trail on the basis that Dr Johan
Reid, a neurologist, who assessed the plaintiff
on 16 March 2020, opined that a
curator bonis and curator ad litem should be appointed for the plaintiff. In
the medico-legal report
compiled by Dr Keir Le Fèvre, a psychiatrist, dated 16
October 2020, reference was made to a gambling problem with which the
plaintiff has successfully dealt with prior to the accident. It was noted that
the stress of the accident may account for a relapse
in future. A postponement
was requested to investigate these aspects. The application for a postponement
was opposed by the plaintiff.
After hearing arguments on behalf of the parties,
the application for a postponement of the trial was refused.
[
5] In terms of the
minutes of the pre-trial meeting held between the parties on 1 November 2023, the
plaintiff undertook to
furnish the defendant with proof of the past medical and
hospital expenses incurred by the plaintiff due to the accident by no later
than 3 November 2023. The plaintiff duly complied with the undertaking. The
defendant undertook to respond to the settlement proposal
in respect of the
past medical and hospital expenses by no later than 8 December 2023. At the
date of the hearing of this matter,
the defendant has failed to revert in this
regard.
[6] The plaintiff has deposed to an affidavit
confirming the expenses in respect of the past hospital and medical costs. In
the heads of argument submitted by the defendant, it is contended that the
plaintiff has indeed furnished the defendant with vouchers
from Discovery
Medical Aid. The defendant has tendered an amount less than the amount claimed
by the plaintiff on the basis that
the plaintiff did not suffer a financial or
personal loss as these expenses were covered by the plaintiffs medical aid.
Section
17(1) of the RAF Act obliges the defendant, subject to certain
exclusions and limitations, to compensate any person where injury
has been
sustained or death occurred as a result of the negligent driving of a motor
vehicle. The defendant seeks to escape liability
for payment of the past
medical and hospital expenses on the basis that these expenses were paid for by
the plaintiffs medical
aid scheme.
[7] The defendant is not entitled to seek to free
itself from the obligation to pay full compensation to victims of motor vehicle
accidents. Payment by a plaintiffs private medical aid scheme of past medical
expenses does not relive the defendant of its obligation
to compensate the
plaintiff for past medical expenses.
[1]
Therefore medical aid scheme benefits which the plaintiff has received are not
deductible from his claim against the defendant.
[2]
I am
therefore in agreement that the plaintiff has proved his claim in respect of
the past medical and hospital expenses in the
amount of R1 409 676.22
[8] The plaintiff presented the testimony of two
expert witnesses during the trial, Mignon Coetzee (Coetzee), a Clinical and
Neuropsychologist and Liza Hofmeyr, a Counselling Psychiatrist and Human
Resources Consultant. The plaintiff did not testify during
the trial. The
defendant admitted the medico-legal reports filed by the plaintiff which
reports were admitted as evidence in terms
of rule 38(2) of the Uniform Rules
of Court. The plaintiff provided the court with the medico-legal reports of the
following experts:
(a)
Dr
T le Roux (Orthopaedic Surgeon);
(b)
Ms
L Hofmeyr (Counselling Psychologist & Human Resources Consultant);
(c)
Dr
J Reid (Neurologist);
(d)
Dr
K le Fèvre (Psychiatrist);
(e)
Ms
M Joubert (Occupational Therapist);
(f)
Ms
M Coetzee (Clinical and Neuropsychologist);
(g)
Dr
D Ogilvy (Speech and Language Pathologist); and
(h)
Munro
Consulting Actuaries.
[9] The defendant has filed one expert
summary, namely a summary of Ms S Vilakazi (Vilakazi), an industrial
psychologist.
The medico-legal report by Vilakazi was not admitted as evidence,
however the psychologists, Hofmeyr and Vilakazi, convened and
filed a joint
minute dated 11 June 2024 which reflect the full agreement. The defendant did
not present any evidence during the
trail.
[10]
Mr
Roux SC, counsel on behalf of the plaintiff, filed heads of argument and
addressed the court on the evidence presented during
the trial, the reports
filed by the plaintiff and the joint minutes regarding the quantum of the
claims for past hospital and medical
expenses, future loss of income and
general damages as well as the percentage to be applied in respect of the
contingencies. Ms
Banda filed heads of argument some two weeks later relating
to the same aspects.
[11]
It is
not my intention to give a detailed summary of the evidence presented by the plaintiffs
expert witnesses, save to mention
the following:
The personal
and family background information regarding the plaintiff was set out in the
report by Coetzee. The plaintiff is currently
49 years old and was injured when
he was 42 years old. He is residing with his wife and two children in Cape
Town. The plaintiff
is the oldest of two children born to his parents. The
plaintiff was born in Uitenhage and spent his early childhood in Kimberly
where
he attended pre-school. The family relocated a number of times and eventually
the plaintiff completed his school years in
George in 1993 with above average
academic qualifications. The plaintiff enrolled for a BCom degree at the
University of Port Elizabeth
but did not complete his studies at the time.
During his employment in the banking sector, he completed his studies and later
also
embarked on an MBA degree through the University of Stellenbosch, but did
not complete the full course.
[12] The full history of the plaintiffs employment
career is set out in the report by Coetzee and for purposes of this judgment
it
would suffice to mention that the plaintiff was successful in respect of the
positions he held at different companies/ businesses
throughout his employment
career. He evidently seized different challenges and opportunities and had the
ability to overcome retrenchment
and other obstacles which occurred from time
to time. Prior to the accident the plaintiff maintained a high level of
physical activity
and fitness and enjoyed playing golf and cycling. He did not
have any significant medical history apart from a posterior Cruciate
Ligament
injury to his right knee. He suffered the following injuries in the accident on
2 April 2018:
(a) traumatic head
injury, including fractures of the left parietal and temporal bones, extradural
haematoma in the left middle
cranial fossa with depth of 2,2cm, extradural
heamatoma overlying the high fronto-parietal lobe with dept of 1cm, attenuation
of
the left lateral ventricle, haemorrhage contusion of the right basal ganglia
and a large left sided scalp haematoma
(b) a moderately severe brain injury
(c) bilateral clavicle fractures
(d) fractures of the
sternum (breast bone) and manubrium (bone above the sternum)
(e) multiple bilateral
rib fractures
(f) right and left
haemopneumothorax
(g) ruptured liver,
spleen and kidney
(h) soft tissue injuries
to the cervical spine
(i) fracture of the
second metacarpal bone of the right hand
(j) fractures of the
pelvis, including a fracture of the left transverse process L4, a fracture of
the right ala of the sacrum,
a fracture of the right superior and inferior
pubic rami, a fracture of the left superior pubic ramus and a fracture of the
anterior
column of the acetabulum
[13] The plaintiff had been intubated and ventilated at
the accident scene and a Glasgow Coma Scale of 14/15 was recorded. His
level of
consciousness deteriorated. When he was first assessed at the trauma unit at
the Netcare Union Hospital at Alberton he
was in shock and a Glasgow Coma Scale
of 2/15 was recorded. He presented with major chest trauma. Intercostal drains
were used
to drain the haemo- and pneumothorax. On 3 April 2018 a craniotomy
and draining of the extradural haemotoma was performed. On 6
April 2018 a
tracheostomy was performed. On 3 May 2018 he was transferred for
rehabilitation. On 23 August 2018 the tracheotomy
scar was improved by a
plastic surgeon. The plaintiffs liver was reduced and the ruptured diaphragm
was repaired by a thoracic
surgeon.
[14] Ongoing symptoms include the following:
(a) headaches;
(b) poor concentration with a short attention span;
(c) forgetfulness and poor short-term memory;
(d) irritability;
(e) unprovoked aggression and impulsivity;
(f) emotion, behaviour and personality changes;
(g) palpitations during exercise;
(h) neckache; and
(i) erectile dysfunction.
[15] According to Dr Reid the plaintiff suffered
moderately severe closed-head trauma with permanent neurocognitive compromise.
His whole person impairment comes to 30% for severe neurocognitive compromise. No
further neurosurgical intervention will improve
his neurocognitive deficits. Dr
le Fèvre opined that due to the combination of the plaintiffs psychiatric and
physical injuries,
his stress and anxiety makes him irrational at times. His
loss of enjoyment seems very significant and not being able to cycle or
drive
as before and being insecure at work stresses him a great deal. He furthermore
experiences increased stress in his family
life.
[16] The trauma of the accident caused not only physical
issues, but also neuropsychiatric and physiological issues. Even though
the
plaintiffs anxiety and mood problems may improve with the time, he will always
be troubled by the sequelae of the traumatic
brain injury, namely
neurocognitive loss, irritability and moodiness. His psychiatric injuries have
rendered him a less capable
person socially, intellectually and executively. According
to Coetzee formal testing indicates that even though the plaintiffs
innate
intellectual ability is believed to have remained largely intact, there are
specific areas of relative weakness and/or compromise
that are believed to stem
from the head injury and presents as, inter alia, compromised communicative
effectiveness, word retrieval
difficulties, compromised speed of processing,
difficulty in retrieving encoded information and the ability to track and
monitor
his own performance. She opined that it is evident that the plaintiff
is devastated by and anxious about the fundamental changes
in his physical,
emotional and neuropsychological functioning. The changes in his personality,
behaviour, temperament and mood
regulation add additional stress to his life.
[17] According to Dr Ogilvy, the speech and language
therapist, the plaintiff presents with significant cognitive-communicative
deficits and significant expressive and receptive communication impairments. The
plaintiffs cognitive-communicative deficits and
communication impairments are
pathological and neurogenic in nature and fully in keeping with the traumatic
brain injury he sustained
in the accident. These deficits and impairments can
be considered permanent in nature. The plaintiff has received intensive
rehabilitation
and therapeutic intervention since the accident. This includes
occupational therapy, physiotherapy and participation in a biokinetic
treatment
program for a full year. He furthermore attended sessions with a psychologist
and consulted a psychiatrist.
[18] Hofmeyer testified during the trial and confirmed
the contents of the joint minutes as agreed between her and Vilakazi. From
the
contents of the joint minutes, it is evident that it was agreed that the
plaintiff presented as an achievement orientated and
ambitious individual with
high aspirations for his career. For purposes of the actuarial calculations, it
was assumed that the
plaintiff would have received 9% of his basic annual
salary for his involvement which would have amounted to R1 542 135.84
(2019). The plaintiffs total annual package amounted to
R2 276 220.12. Although the retirement age at the plaintiffs
current
employer is at 60 years, it is assumed that the plaintiff would have pursued
alternative employment in order to work until
the age of 65 years.
[19] Regarding the post-morbid scenario it is agreed
that the plaintiff was unable to return to work during 2018 and he only started
working in a limited capacity during December 2018 for an hour to two hours per
day. He returned to work in January 2019 and was
extensively accommodated by
his employer. It is furthermore agreed that further career progression is not
envisaged. Although
his renumeration was not adjusted, despite being
responsible for a much smaller client, the plaintiffs annual increases were
lower
than prior to the accident. It is assumed that this pattern will persist
and that the plaintiff would thus continue to suffer a
future loss of income
resulting from lower annual increases than the other senior managers.
[20] The industrial psychologists agreed that the
plaintiff will not be able to cope with the demands of alternative employment
as a Client Executive, Key Accounts Manager/Executive or Sales Director
elsewhere, which is indicative of significantly reduced
career scope for which
compensation is recommended by way of contingencies. It is furthermore assumed
that sustained employment
until retirement age would be dependent upon the
plaintiffs pain tolerance and resilience, to which extent he could continue to
rely on compensatory strategies and the continued accommodation by his current
employer. However, overtaxing on his coping skills
will in the long run impact
on his endurance. It was agreed that the plaintiff may retire at the age of 55
years when he could
become eligible for early retirement.
[21] Regarding the claim for loss of earnings/earning
capacity the defendant contends that even though the plaintiff returned
to work
post-accident and now manages a smaller client compared to his pre-accident
client, his earnings were not affected as a
result of this change. This is not
what was agreed upon by Hofmeyr and Vilakazi. The contention that no supporting
documents to
confirm the collateral information obtained from the plaintiffs
employer, that he would have been appointed to the African Executive
Committee
which would have meant further increases in his income, with the result that
this aspect should not impact upon his loss
of income, are without substance.
The experts agreed that further career progression is not envisaged.
[22] In the heads of argument submitted by Ms Banda it
is contended that an award for past loss of earnings in the amount of
R500 000 and R1million for future loss of earnings would be fair and
reasonable. No specific percentage of contingency deductions
has been indicated
and this aspect has been placed in the hands of the court. The actuarial
report filed by the plaintiff, on
the other hand, has included the information
that the plaintiff has lost out on additional incentive earnings, has reduced
earnings
since the accident and might suffer losses that are not directly
quantifiable and should be addressed via contingencies.
[23] The actuarial calculation filed by the plaintiff
includes the assumption that the plaintiffs earnings will increase by 1.5%
to
2% lower than his peers. Increases have been assumed in line with long-term
earnings inflation assumption. Contingencies have
been applied as follows:
Uninjured:
3% and 8.5% on past and future earnings respectively
Injured:
15% on future earnings.
The capital value of the loss of earnings (excluding the
RAF cap) suffered by the plaintiff is as follows:
UNINJURED
INJURED LOSS OF EARNINGS
PAST
INCOME R14 509 500 R11 133 700
CONTINGENCIES
3%
NET
PAST INCOME R14 074 215 R11 133 700
R2 940 515
FUTURE
INCOME R32 180 000 R8 865 900
CONTINGENCIES
8% 15%________________________________
R29 444
700 R7 536 015 R21 908 685
TOTAL
LOSS OF EARNINGS
R24 849
200
The
capital value of the loss of earnings including the RAF cap after contingencies
amount to:
CAPPED LOSS
Past
R883 400
Future
R4 353 500
TOTAL:
R5 236 900
[24]
In
Southern Insurance Association v Bailey NO
,
[3]
Nicholson JA held as follows concerning computation of future loss
of earnings as a component of delictual damages:
Any enquiry into damages
for loss of earning capacity is of its nature speculative, because it involves
a prediction as to the
future, without the benefit of crystal balls,
soothsayers, augurs or oracles. All that the Court can do is to make an
estimate,
which is often a very rough estimate, of the present value of the
loss.
[4]
Contingencies are th
e . . . hazards of life that normally
beset the lives and circumstances of ordinary people
[5]
and
should therefore,
. . .by
its very nature, be a process of subjective impression or estimation rather
than objective calculation.
[6]
Contingencies for which allowance should be made, would usually include the
following:
(a)
the possibility of illness which would have occurred in any event;
(b)
inflation or deflation of the value of money in future; and
(c)
other risks of life such as accidents or even death, which would have
become a reality, sooner or later, in any event.
[7]
[25] The actuarial
calculations by the plaintiffs actuaries are premised on the expert opinions
of Hofmeyer and Vilakazi and
the
sequalae
occasioned by the injuries
sustained by the plaintiff and renders the actuarial calculations both fair and
reasonable.
I agree with the contention on behalf of the
plaintiff that the contingency of 3% in respect of the past uninjured earnings
is in
accordance with the general accepted approach. The 8,5% contingency
deduction in respect of the future uninjured earnings is slightly
higher than
the norm since the plaintiff is presently 49 years old and a further 16 years
remain before retirement. I am satisfied
that the contingency deduction applied
in this regard is fair and reasonable.
The plaintiff should therefore
be compensated in the total amount of R5 236 900 in respect of his loss of
earnings.
[26] At the hearing this
matter, Mr Roux SC applied for an amendment of the amount claimed in respect of
general damages to read
R2 million. As to the claim for general damages,
plaintiff counsel referred to four cases where the injuries sustained by the
claimants are comparable to the injuries and the sequelae thereof of the
plaintiff. The injuries suffered by a Grade 8 schoolboy
in
Rabie v MEC for
Education, Gauteng
[8]
are,
inter alia, that he suffered a brain injury as well as a fracture of the
mandible and a head injury with skull fractures when
he was thrown into the air
and landed on his head. Besides the head injury, x-rays revealed a pathology of
the right upper lung.
He was treated in the intensive care unit for an extended
period of time and a tracheostomy and craniotomy were performed. He furthermore
suffered a fracture of the patella of the left knee. He later returned to
school but was socially isolated and unable to return
to physical sports. He
was left with impairments in the neuro-cognitive, neuro-psychological and
neuro-behavioural range. He completed
his studies at school and obtained
university admission. An amount of R800 000 which would amount to
R1 403 000
in 2024 was awarded for general damages.
[27] An amount of
R1 350 000 was awarded for general damages in the matter of
Dlamini
v RAF
[9]
where the
claimant suffered a brain injury as well as a fracture of the mandible and an
injury the right foot (dislocation). The
claimant suffered from cognitive deficits
and was no longer able to work. As a result of his neuro-cognitive and
neuro-psychiatric
sequelae, the appointment of a curator ad litem and curator
bonis was recommended. The present-day value will be approximately R2
million.
On behalf of the plaintiff, it is contended that an amount of R2 million would
be fair and reasonable compensation under
the heading for general damages.
[28] Ms Banda referred to
a number of cases and contends that a fair and reasonable award for general
damages will amount to
R1 350 000. Mr Roux SC, in reply, expressed
criticism against the contention on behalf of the RAF that the awards made
in
Van
der Mescht v Road Accident Fund,
[10]
Claassens v Road Accident Fund,
[11]
Mathopa v Road Accident Fund
[12]
and
Zavela v Road Accident Fund
[13]
are
comparable to the facts of the matter at hand. On behalf of the plaintiff, it
is argued that the injuries and their sequelae
suffered by the plaintiff are
more severe and furthermore, the cases referred to by the defendant are of
little assistance since
the sequelae of the injuries were not dealt with in any
detail, alternatively with sparse detail with the result that the cases
referred to by the plaintiff are more on par with the facts of the matter on
hand.
[29]
It is
trite that an assessment of the amount of damages is a matter of estimation and
a trial court has a wide discretion to award
what it in the circumstances
considers to be fair and adequate compensation to the injured party for his or
her bodily injuries
and their
sequelae
and
having
regard to a broad spectrum of facts and circumstances connected to the
plaintiff and the injuries suffered, including their
nature, permanence,
severity and the impact on the plaintiffs lifestyle.
[30] In
Cawood
NO v Road Accident Fund
[14]
an adult female sustained a significant blow to the head resulting in skull
base and facial fractures. A CT scan confirmed the
presence of a frontal
extradural hematoma requiring surgical drainage. At the time of the trial the current
physical neurological
examination was normal with no focal neurological
deficits. The claimant reported problems with memory, concentration and
behaviour.
The traumatic brain injury has not physically impaired her ability
to work, but her many cognitive impairments have significantly
affected her
ability to engage in gainful employment. She suffers from, inter alia,
psychological and cognitive fallouts, a disruption
in her activities of daily
living, headaches, dizziness and intolerance for light and noise. She will
require supervision and guidance
for the rest of her life. An amount of
R1 400 000 was awarded for general damages in 2023 which will amount
to R1 471 000
in 2024.
[31] In
P
obo LP v Road Accident Fund
[15]
a 13-year-old schoolboy was hit by a minibus taxi. He was a pedestrian at
the time of the incident. He was comatose after the accident
and was airlifted
to hospital. He spent five weeks in ICU and another four weeks in a general
ward. Thereafter he attended a rehabilitation
centre for a further period of
four months. His serious head injuries consisted of a depressed skull fracture,
traumatic contusion
and haemorrhage in the right temporal and bi-frontal
regions, subdural haematomas in the right frontoparietal region, a diffuse
axonal injury involving the cerebral hemispheres basal ganglia, brainstem
cerebellum and corpus callosum of the brain. He suffered
fractures of the right
femur, tibia and clavicle; also, multiple abrasions and lacerations resulting
in disfigurement of permanent
nature.
[32] The head
injury resulted in diffuse brain damage with severe intellectual and other
deficits such a speech-problems, pseudobulbar
paralysis of the mouth, tongue
and swallowing mechanisms and intermittent loss of both bladder and stool
control. Drastic personality
changes left the minor emotionally volatile with
aggressiveness at times and severe emotional control problems. The minor
childs
right leg was shorter than the left, he was unable to walk for long
periods without assistance and was effectively wheelchair bound.
He cannot write
as he struggles with pencil grip. His ability to engage in meaningful
interactions and to express himself are impaired
and permanent. He suffers from
memory problems and his mental processing is slow. He will not be able to
matriculate even in a
school for learners with special needs. He is regarded as
unemployable. An amount of R1 850 000 was awarded in 2023 which
would
equate to an amount of R2 085 000 in current terms.
[33] The court
will generally be guided by awards previously made in comparable cases and will
be alive to the tendency for
awards to be higher in recent years than has
previously been the case. In considering previous awards it is
appropriate to
have regard to the depreciating value of money due to the
ravages of inflation.
Having regard to the comparable awards
relied upon by Mr Roux SC, the cases referred to by Ms Banda and the two
matters referred
to above, I am of the view that an amount of R1 700 000
as general damages would be fair and reasonable given the profound
loss of
amenities suffered by the plaintiff, the loss of his career prospects and
sequelae
of the head injury as well as his retained insight in respect of the losses
suffered due to the accident.
[34]
ORDER
In the result the following
order is made:
1.
The Defendant shall pay to the Plaintiff the
amount of
R8 346 576.22 (EIGHT MILLION THREE HUNDRED AND FORTY-SIX
THOUSAND FIVE HUNDRED AND SEVENTY-SIX THOUSAND RAND AND 22 CENTS)
in
respect of the Plaintiffs claim against the Defendant for the following heads
of damages:
Past
Hospital and Medical Expenses: R1 409 676.22
Past and Future Loss of Earnings/Earning
Capacity: R5 236 900.00
General Damages:
R1 700 000.00
2. The aforesaid amount
shall be
paid into the trust account of Plaintiffs attorney, particulars thereof being
as follows:
DSC
Attorneys
First
National Bank
Account
number:6[
]
Branch
code: 210651
3. The Defendant shall
pay interest on the aforesaid amount at the prescribed rate of
mora
interest for arrears debt, in terms of the
Prescribed Rate of Interest Act, 55
of 1975
, calculated 14 (fourteen) days from date of this order being granted,
but only in the event that the said amount is not paid within
180 days of date
of this order.
4.
The Defendant is to
furnish an undertaking to the Plaintiff in terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for 100% of the future accommodation of the
Plaintiff in a hospital or nursing home or the treatment of, or the rendering of
a
service or the supply of goods to him arising out of injuries sustained by
him in a motor vehicle accident on 2 April 2018
in terms of which
undertaking the Defendant will be obliged to compensate him in respect of the
said costs after the costs have
been incurred and on proof thereof.
5.
The
Defendant shall pay the Plaintiffs taxed party and party costs on High Court
scale to date of this order, including for sake
of clarity, but not limited to,
the costs of the plaintiffs attorneys, DSC Incorporated in Cape Town and the
correspondent attorneys
in Bloemfontein, including the attendances of candidate
legal practitioner(s) where relevant, as well as other costs set out hereunder,
which costs will be subject to the discretion of the Taxing Master.
6. The defendant shall pay the taxed or
agreed fees and qualifying expenses, reservation fees and all costs attached to
the
procurement of the medico-legal reports and other reports listed hereunder,
including addendum reports where relevant as well as
X-rays and any other
related costs. The latter costs shall include the costs of attending all
plaintiffs medico-legal examinations,
the amount of which will be in the
discretion of the Taxing Master
following:
6.1 Full
qualifying fees of the following experts:
6.1.1 Dr
J Reid (Neurologist)
6.1.2 Dr
T le Roux (Orthopaedic Surgeon);
6.1.3 Mignon
Coetzee (Clinical & Neuropsychologist);
6.1.4 Dr
Keir le Fèvre (Psychiatrist);
6.1.5 Dr
Dale Ogilvy (Speech & Language Therapist);
6.1.6 Marleen
Joubert (Occupational Therapist);
6.1.7 Liza
Hofmeyer (Industrial Psychologist);
6.1.8 Willem
Boshoff (Actuary Munro Forensic Actuaries).
7. The Defendant shall pay the taxed or
agreed fees of Plaintiffs senior counsel, where so employed, on the High Court
Scale C.
8. The Defendant shall pay the actual
travelling costs of the plaintiff, plaintiffs attorney, counsel and two (2)
expert
witnesses in respect of travel from Cape Town to Bloemfontein and back
for the trial on 17 and 18 September 2024 as allowed by the
Taxing Master.
9. The defendant shall pay the taxed or
agreed fees of the Plaintiffs accommodation and related costs as well as that
of
Plaintiffs attorney, counsel and two (20 expert witnesses in respect of the
trial on 17 and 18 September 2024 as allowed by the
Taxing Master.
10 The Defendant shall pay the costs
related to the
Rule 37(8)
Conferences.
11. In the event that costs are not
agreed between the parties, the Plaintiff shall serve the Notice of Taxation on
the Defendants
attorney of record.
I VAN RHYN
JUDGE OF THE HIGH COURT,
FREE STATE DIVISION, BLOEMFONTEIN
Appearances
On
behalf of the Plaintiff:;Adv. J-H ROUX SC
Instructed
by:;Rosendorff Reitz Barry Attorneys
;Bloemfontein
On
behalf of the Defendant:;P BANDA
Instructed
by:;State Attorneys
;Bloemfontein
[1]
Rayi NO v Road Accident Fund
(9343/2000)
[2010] ZAWCHC 30
(22 February 2010).
[2]
DAmbrosini v Bane
2006 (5) SA 121
(C);
Discovery
Health (Pty) Ltd v RAF and Another
(2022/016179) [2022] ZAGPPHC 768 (26 October 2022).
[3]
1984 (1) SA
98 (AD).
[4]
Ibid at 113G.
[5]
Corbett
& Buchanan,
The Quantum of Damages
, Vol II 360 at 367.
[6]
Shield Ins. Co. Ltd v Booysen
1979 (3) SA 953
(A) at 965G-H.
[7]
Corbett & Buchanan,
The Quantum
of Damages
, Vol I at 51.
[8]
2013 (6A4) QOD 227 (GNP).
[9]
Case No 59188/2013 (3 September) 2015.
[10]
2010 6 (QOD) J2-42 (GSJ).
[11]
[2019] LNQD 47 (GP).
[12]
[2024] LNQD 24 (GP);
[2023] ZAGPHC 1810.
[13]
[2013]
ZAGPJHC 215 (GJ)
[14]
2023 (8A4) QOD 195 (GNP).
[15]
2023 (
8A4) QOD 174 (GSJ).