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Mofokeng v Road Accident Fund (69/2017) [2024] ZAFSHC …

Mofokeng v Road Accident Fund (69/2017) [2024] ZAFSHC 348 (7 November 2024)

45 Reportability

Personal Injury Law - Road Accident Fund

Brief Summary

Damages — General damages — Claim for general damages arising from motor vehicle collision — Plaintiff sustained right clavicle fracture and moderate head injury, resulting in chronic pain, memory impairment, and epilepsy — Defendant conceded merits of claim — Court awarded R850,000 for general damages, considering the impact of injuries on plaintiff's life and ability to work — Payment to be made into a trust for the benefit of the plaintiff.

Full Judgment Text (Click to expand)

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[2024] ZAFSHC 348
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Mofokeng v Road Accident Fund (69/2017) [2024] ZAFSHC 348 (7 November 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:

NO
Of
interest to other Judges: NO
Circulate to
Magistrates:
NO
Case
no:
69/2017
In
the matter between:
JOSEPH
MOFOKENG
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
Coram:
DAFFUE J
Heard
:
23 AUGUST 2024
Delivered
:
7 NOVEMBER 2024
Summary:
On 13 December 2013 the plaintiff, a
32-year-old male person at the time, was struck from behind by a
motor vehicle whilst riding
his motor cycle. He sustained a right
clavicle fracture and a moderate head injury. A CT scan indicated,
inter alia
, contusion haemorrhage left frontal and temporal
and surrounding
vasogenic edema
. Right
otitis media
was reported whilst blood was oozing from the right ear. All other
disputes having been settled, the court was called upon to adjudicate

general damages only. The plaintiff is still operating his own
taxi, although he is compromised. He often forgets where
he is
heading to and on occasion cannot work his normal shifts. The
clavicle fracture healed although he still experiences pain
and
discomfort. He suffers from daily headaches. He experiences memory
impairment, anger and poor concentration. In 2023 he was
diagnosed
with epilepsy, which according to the medical evidence is directly
related to the brain injury. Chronic medication has
been prescribed
with success. According to expert opinion the plaintiff’s brain
dysfunction and Post Traumatic Stress Syndrome
caused his
neuro-psychiatric abnormality. R850 000 was awarded in respect
of general damages.
ORDER
1.
The defendant shall pay the plaintiff the
amount of R850 000
(eight hundred and fifty thousand rand) for general damages in
respect of shock, pain, suffering, disfigurement,
disability and loss
of amenities of life, which amount shall be paid into the following
bank account:
Symington & de Kok
Attorneys
First National Bank
Account number: 5[…]
Branch code: 250 655
Reference: TR0706MXM2983.
2.
Defendant shall pay interest on the aforesaid
amount at the
prescribed rate of interest calculated 14 (FOURTEEN) days from date
of judgment to date of payment.
3.
The defendant shall be afforded a period of
180 calendar days from
the date of this order to effect payment herein during which period
the plaintiff will not be entitled to
issue a writ against the
defendant.
4.
The defendant shall pay the plaintiff’s
taxed party and party
costs on a High Court scale to date of this order which shall include
the travelling costs of the plaintiff,
as well as counsel’s
fees calculated on scale B of rule 69 read with rule 67A(3) and the
reasonable qualifying, preparation,
reservation and appearance fees
of the following experts (where applicable):
4.1
Dr M Jivan (general practitioner);
4.2
Dr JF Ziervogel (orthopaedic surgeon);
4.3
S van Jaarsveld (industrial psychologist);
4.4
L Delport (occupational therapist);
4.5
M Pienaar (neuropsychologist);
4.6
Human & Morris Actuaries;
4.7
Rikus van der Poel (clinical psychologist); and
4.8
Dr JA Smuts (Neurologist).
5.
Interest shall accrue at the prescribed statutory
rate in respect of:
5.1
the capital amount of the claim, calculated 14 (fourteen) days from

date of this order to date of final payment, in the event that
payment is not affected within the 180 days from date of this order

as per paragraph 3 above;
5.2
the taxed costs, calculated from 14 (fourteen) days from date of

taxation to date of final payment.
6.
The plaintiff’s attorneys of record
shall attend to the
creation of an
inter vivos
trust in order to protect the
awarded funds to the exclusive benefit of the plaintiff.
7.
The trust shall be created in accordance with
the draft Trust Deed
attached hereto as annexure “A”, and the trustee of the
trust shall have the powers as set out
therein, duly amplified with
any powers to be recommended by the Master of the High Court of South
Africa (the Master), and the
provisions of the draft Trust Deed are
regarded as incorporated into this order.
8.
The defendant shall pay the costs in respect
of the creation and
future administration of the said trust, which costs shall include
the fees of the trustee.
9.
The trustee shall, unless exempted, furnish
security to the
satisfaction of the Master.
JUDGMENT
Daffue
J
Introduction
[1]
The plaintiff is Mr Joseph Mofokeng, a major male person
residing in
Sasolburg, Free State Province. He was born on 25 February 1981 and
was therefore 32 years old when he was injured
in a motor vehicle
collision on 13 December 2013. He is now 43 years old. He instituted
action against the Road Accident Fund (the
defendant) to claim
damages allegedly suffered as a result of the injuries sustained in
the aforementioned collision.
[2]
The merits of the claim were conceded in full by the
defendant as
long ago as 17 October 2017. On 27 July 2021, four years later, the
plaintiff’s claim for loss of earnings was
settled and the
defendant undertook to furnish the usual undertaking in terms of
s
17(4)(a)
of the
Road Accident Fund Act, 1996
. The issue of general
damages was separated from the other heads of damage in terms of rule
33(4) of the Uniform Rules of Court
and postponed to be adjudicated
at a later stage. A further three years later this portion of the
claim was eventually set down
for hearing to be adjudicated by me.
[3]
On the trial date the defendant’s legal representative,
Ms
Banda, requested to be excused from participating in the trial
proceedings due to lack of instructions. This was not a surprise
at
all. In this case the defendant filed expert reports of Dr HL Moloto,
an orthopaedic surgeon, Dr T Rapapali, a clinical psychologist,
Ms
Success Moagi, an occupational therapist, and M Kheswa, an industrial
psychologist. A cursory perusal of these reports points
in one
direction only and that is that they are not in conflict in any
material respects with the reports filed by like experts
on behalf of
the plaintiff. In fact, these reports support the plaintiff’s
case. Although Ms Banda mentioned that she could
not make any
meaningful contribution, she placed the following on record:
a.
there was no evidence by a neurosurgeon that
the plaintiff suffered
from a brain injury, bearing in mind the Glascow Coma Score (GCS) of
14/15 on hospitalisation;
b.
there was no proof that the plaintiff suffered
from epilepsy and that
he was receiving treatment for this condition;
c.
the plaintiff was still driving a taxi notwithstanding
his alleged
medical condition;
d.
there was no evidence that the plaintiff was
still suffering from his
orthopaedic injuries as the clavicle fracture had healed according to
the evidence.
[4]
Ms Banda indicated that she had no objection to the filing
of
affidavits by Dr ZF Ziervogel, Ms Mariske Pienaar and Dr JH Smuts to
confirm their expert reports in accordance with the provisions
of
rule 38(2) of the Uniform Rules of Court. Hereafter she was excused
from further attendance. Consequently, I ruled that these
expert
reports, confirmed by the respective affidavits, may be presented as
evidence in terms of rule 38(2).
The
relief sought
[5]
As indicated, the only outstanding issue is the claim
for general
damages. The plaintiff claimed R900 000 in his particulars of
claim which is the same amount that his counsel,
Adv MDJ Steenkamp,
submitted should be awarded to him.
The
evaluation of the evidence
[6]
The following witnesses testified during the trial:
a.
the plaintiff, Mr Joseph Mofokeng;
b.
Mr Rikus van der Poel, a neuropsychologist;
and
c.
Ms Letitia Delport, an occupational therapist.
[7]
The reports of the following experts were handed in:
a.
Dr JF Ziervogel, an orthopaedic surgeon, as
exhibit A inclusive of
his affidavit;
b.
Ms Letitia Delport, the occupational therapist,
as exhibit B;
c.
Ms Mariske Pienaar, the neuropsychologist,
as exhibit C inclusive of
her affidavit;
d.
Mr Rikus van der Poel, the neuropsychologist,
as exhibit D; and
e.
Dr JA Smuts, the neurologist, as exhibit E
inclusive of his
affidavit.
[8]
After considering the evidence, I deemed it appropriate
to direct Mr
Steenkamp to obtain an affidavit of Dr MD Thokoane as both the
plaintiff and Mr Van der Poel referred during their
testimony to Dr
Thokoane, the plaintiff’s general practitioner. The affidavit
was obtained and accepted as exhibit F. The
contents thereof will be
considered when I evaluate the evidence. I am satisfied that this
procedure did not prejudice any of the
defendant’s rights to a
fair trial, or at all.
Evaluation
of the evidence and submissions made
[9]
It is common cause that the plaintiff sustained a right
clavicle
fracture and a head injury. He was admitted at the Sasolburg Hospital
on 13 December 2013 and transferred to Pelonomi
hospital on 17
December 2013. The GCS measured 14/15 from 15 December 2013 to 18
December 2013. On 17 December 2013 a CT brain
scan was taken,
indicating contusion haemorrhage left frontal and temporal and
surrounding
vasogenic edema
(extra-cellular accumulation of
fluid). Blood was detected in the sphenoid sinus (the hollow space in
the bones around the nose),
suspicious of a base of skull fracture,
although no fracture lines could be detected. Right
otitis media
(infection of the middle ear) was reported and the right ear was
oozing blood. The plaintiff was transferred back to Sasolburg

hospital and eventually discharged on 14 January 2014.
[10]
I accept that I have to grant a globular award, bearing in mind the
totality
of the injuries, but I believe that it is useful to consider
the orthopaedic and neurological injuries and their sequelae
separately.
Once that is done, I shall arrive at an amount which I
regard just and fair in this specific instance.
[11]
The plaintiff is a taxi driver. Prior to the collision he was the
owner of
four taxis, but on his return home after his
hospitalisation, one taxi had been stolen and two others had been
damaged in collisions.
He is making use of one taxi. This taxi was
not roadworthy for some time. He, being a qualified mechanic,
repaired it. The plaintiff
was vague during his evidence as to when
he started driving his own taxi again. At a stage he even tried to
convey that he did
not drive his taxi for a period of ten years after
the collision. This is contrary to his versions to Dr Ziervogel who
examined
him on 11 January 2018 and Ms Delport who examined him on 7
January 2020. He has been a taxi driver from 2004
ex facie
Ms
Delport’s report.
[12]
The plaintiff was a bodybuilder and a member of the Slater gymnasium
prior
to the collision. He cannot do any bodybuilding anymore, but
keeps himself fit with aerobic exercises. He services and repairs his

own taxi when required, but finds it difficult to work for too long
with tools such as spanners. He also finds it difficult to
drive for
a long time. According to him, he still experiences daily pain in his
right shoulder and cannot sleep on his right side.
When referred to
the report of Dr Ziervogel dated 11 January 2018, he merely stated
that he personally was the one feeling the
pain daily. Fact of the
matter is that the plaintiff has been operating his taxi for many
years since the collision and this is
still the situation. According
to him, he usually conveys two loads of people in the mornings and
two to three loads during the
afternoons although it is not always
possible to work a full day. He works every day of the week.
[13]
One golden thread running through the collateral evidence relied upon
by the
experts and confirmed by the plaintiff in his oral testimony
is the frequent and almost daily headaches from which he is
suffering,
as well as the pain and discomfort experienced as a result
of his right shoulder injury. He, for example, finds it difficult to

write. The plaintiff’s evidence confirmed the behavioural
changes provided as collateral evidence to the experts. There is
no
reason to reject his version. I accept that he incurred a loss of
amenities of life.
[14]
Four years after the collision Dr Ziervogel confirmed that there was
no obvious
deformity of the right shoulder, although there was
‘tenderness when pressing on the distal third of the clavicle’
and that there was ‘discomfort when pressing on the
acromio-clavicular joint’. The fracture had healed. Although
x-rays
did not reveal any obvious signs of an injury to the
acromio-clavicular joint, it could be treated by infiltrating the
joint with
steroids. If this treatment is not providing the expected
relief, the distal end of the clavicle could be excised to form a
fibrous
arthroplasty (a procedure to remove the outer end of the
clavicle). Although more treatment was indicated, the doctor pointed
out
that from an orthopaedic point of view there was no reason to
consider early retirement.
[15]
The plaintiff testified that he could not carry heavy objects
anymore, but
it is apparent from Ms Delport’s report that he
was able to lift objects up to a maximum weight of 30 kg from the
floor to
his waist, as well as from the floor to the table, without
any prominent difficulty, or whilst experiencing pain.
[16]
It is accepted that the orthopaedic injury was a painful injury as
also suggested
by Dr Ziervogel, but the fracture has healed. Insofar
as the plaintiff still experiences discomfort and pain, treatment as
suggested
by Dr Ziervogel may alleviate the problems. The plaintiff
can continue operating his taxi as he has always done.
[17]
At the time when the plaintiff was examined by Dr Ziervogel in 2018
and Ms
Delport in 2020, he did not inform them of any seizures or
epileptic attacks. They reported none. The plaintiff explained the
epileptic
attacks as a ‘shaking’ of his body, his eyes
rolling, that he would faint, fall down and even bite his tongue.
During
these occasions someone would put a spoon in his mouth. It
would take time to recuperate and he would often not know where he
was
or what had happened. He could not explain how often these
attacks occurred. Initially he did not take the attacks seriously.
Insofar
as he mentioned that he had consulted a doctor and received
medication from his general practitioner, Dr MD Thokoane, his version

is confirmed by Dr Thokoane. Mr Van der Poel, the neuropsychologist,
testified that Dr Thokoane had confirmed the history of epileptic

fits and the chronic medication prescribed.
[18]
Dr Thokoane was approached by the plaintiff on 27 March 2023
regarding two
episodes of epileptic fits that occurred a few days
earlier. At that stage the plaintiff informed the medical
practitioner that
he had been involved in a motor vehicle collision
and that he had ‘a history of biting his tongue, body jerking
and loss
of consciousness’ thereafter. Having considered the
history provided to him, the doctor prescribed Tegretol Cr 400mg for
the treatment of the plaintiff’s epileptic fits. The doctor saw
the plaintiff again on 20 August 2023 who then informed him
that his
epileptic fits had significantly decreased since taking the
prescribed medicine. He renewed the prescription. On 8 March
2024 he
had a further consultation with the plaintiff at which stage the
plaintiff mentioned that he had not experienced any further
episodes
of epileptic fits. According to the doctor the plaintiff will have to
use the chronic medication for the remainder of
his life.
[19]
Mr Van der Poel did several tests on the plaintiff. He was satisfied
that the
plaintiff was not guilty of malingering. In utilising the
Beck Depression Inventory, he concluded that the plaintiff was placed

within the moderate to severely depressed range. The witness was
persuaded that the plaintiff’s problems conveyed to him
such as
headaches, agitation, forgetfulness, poor concentration and
disorganisation, to mention a few, were all related to the
collision
and head injury sustained. According to him these cognitive and
emotional sequelae are associated with the traumatic
brain injury and
the long-term effects of the plaintiff’s reduced physical
capacity as a result of the orthopaedic injury
which still causes
pain and discomfort.
[20]
Both Ms Delport and Mr R Van der Poel did a Montreal Cognitive
Assessment (MOCA)
of the plaintiff. It is accepted that the
assessments were conducted nearly four years apart,
ie
by Ms
Delport on 7 January 2020 and by Mr Van der Poel on 28 October 2023.
According to Ms Delport the plaintiff scored 23/30,
whilst he merely
scored 18/30 according to Mr Van der Poel. The witnesses were not
asked to explain these differences. According
to Mr Van der Poel a
normal cognitive range is between 26 and 30. Although he indicated in
his written report that the plaintiff
was suffering from a mild
cognitive impairment, he indicated in his oral evidence that the
score of 18 is indicative of mild to
moderate cognitive impairment.
Obviously, the score of 23 reported by Ms Delport is much closer to
the normal cognitive range.
I also considered the report and
affidavit of Dr JA Smuts, the neurologist, which was accepted as
exhibit E. He was of the view
that the impact to the plaintiff’s
head was that of a moderate concussive head and brain injury. Dr
Smuts mentioned that
although the plaintiff had not been diagnosed
with epilepsy, clinically he clearly suffered from epilepsy. Although
he was not
informed by the plaintiff which medication was prescribed
to him by his general practitioner, he also suggested that Tegretol
Cr
400mg could be prescribed as a potential treatment option. Dr
Smuts arranged for an EEG to be conducted on the plaintiff. This
presented to be normal, but the expert indicated that although no
epileptiform activity was recorded, this did not exclude epilepsy
as
the ‘findings need to be correlated with the clinical and
radiological findings’.
[21]
Dr Smuts differed from Mr Van der Poel’s expert report
indicating the
MOCA as 18/30 and concluding that the plaintiff was
suffering from a merely mild cognitive impairment. In Dr Smuts’
opinion
the assessment was more in line with moderate cognitive
problems and he also suggested that the court should consider to
suitably
protect any funds to be awarded to the plaintiff. Dr Smuts
found that the plaintiff suffered from a brain dysfunction in the
form
of a frontal dysfunction and that this in combination with the
Post Traumatic Stress Syndrome (PTSD) was the cause of the
neuropsychiatric
problems detected.
[22]
In conclusion pertaining to the brain injury suffered, I am satisfied
that
it can be classified as a moderate concussive head injury with
an associated brain injury as found by Dr Smuts and eventually
concurred
in by Mr Van der Poel in his oral testimony.
General
damages
[23]
It is
desirable that there should be some measure of uniformity of awards
in similar cases, but this is often difficult to achieve.
Judicial
officers should consider previous awards in comparable cases, but in
practice it is not easy to find cases that are in
material respects
similar to the damages suffered by the particular plaintiff before
the court.
[1]
Mr Steenkamp
referred to four cases which he believed should be considered in
order to come to a just award. I shall deal with
these briefly, where
after I shall refer to judgments researched by myself.
[24]
Smit v
Road Accident Fund
[2]
is the first judgment referred to by Mr Steenkamp. The plaintiff in
that case sustained moderate to severe brain damage and post

traumatic epilepsy. He also sustained a femur fracture that was
treated by open reduction and internal fixation, causing a 3.5
cm
shortening of the leg. He was unable to continue his work as a
gardener. The award at its present day value amounted to R1 203 000.

Both the neurological and orthopaedic injuries were much more severe
than
in
casu
.
[25]
Mngomezulu
v Road Accident Fund
[3]
was the second judgment relied upon by Mr Steenkamp. Again, as in the
previous case, the plaintiff sustained a moderate to severe
brain
injury as well as compound fractures of the right tibia and fibula.
He also sustained a closed chest injury with lung contusion.
The
plaintiff’s future employment was compromised. The value of the
award in 2024 is R1 166 000. Again, the injuries
are not
comparable with those
in
casu
.
[26]
Van der
Mescht v Road Accident Fund (Van der Mescht)
[4]
was third judgment referred to by Mr Steenkamp. In that case a female
cyclist merely sustained a moderate brain injury, unlike
in the
previous two cases, together with various fractures of her thoracic
vertebrae, pelvis, left ankle and left scapula. The

neuro-psychological consequences manifested in a changed personality
and diminished functioning in her work environment. The value
of the
award in 2024 is R811 000.
Van
der Mescht’s
orthopaedic injuries were more severe than
in
casu
,
but it is the most comparable of the four cases referred to by Mr
Steenkamp.
[27]
The last
case referred to by Mr Steenkamp is
Tobias
v Road Accident Fund (Tobias).
[5]
The plaintiff sustained a moderate brain injury as well as several
fractures of both tibia and her dorsal vertebrae. At the time
of her
trial there was non-union of the right tibia and also signs of
spondylosis in the dorsal vertebrae. Save for the usual
neuro-psychological deficits, as also experienced in this case, the
plaintiff was unable to walk long distances and to stand for
long
periods. The award, calculated in 2024, amounts to R912 000. The
orthopaedic injuries in
Tobias
were far more severe than
in
casu
.
[28]
In
Nepgen
NO v Road Accident Fund
[6]
the court awarded R900 000 which is equal to a present day value
of R1 666 000. The plaintiff sustained an extremely
severe
brain injury as well as fractures of the right tibia and fibula and
the left clavicle. Although he recovered well, he suffered
from
permanent cortical blindness and a degree of intellectual compromise.
His brain injury presented in severe concentration and
tracking
problems, learning and memory problems, diminished verbal fluency and
slowed mental processing. He was held to be unemployable.
This
judgment is referred to merely to show that it cannot be compared
with the matter at hand. Both the neurological and orthopaedic

injuries are much more severe than
in
casu
.
[29]
In
Protea
Assurance Co Ltd v Matinise
[7]
the plaintiff suffered a severe head injury, developed post-traumatic
epilepsy which resulted in a personality change. On appeal
the
Appellate Division accepted the trial court’s findings that the
injury resulted in severe disabilities. It accepted the
gloomy
picture presented in the expert evidence in respect of the
plaintiff’s future in the open labour market. It is apparent

that no evidence was presented pertaining to the possibility of
prescribing medication to possibly curtail epilepsy attacks. R9 000

was awarded which is equal to a present day value of R466 000.
[30]
In
Sibanyoni
v Mutual & Federal Insurance Co Ltd
[8]
the Supreme Court of Appeal increased the award for general damages
to R15 000. The present day value thereof is R80 000.
The
plaintiff (the appellant on appeal) sustained a head injury, causing
disabilities as a result of which he was medically boarded
by his
employer. Over and above the head injury he also sustained a
dislocated left shoulder and compound fractures of the metacarpals
of
his left hand.
[31]
In
Silombo
v Road Accident Fund (Silombo),
[9]
a much more recent judgment, R425 000 was awarded which equals a
present day value of R479 000. The plaintiff sustained
a
fracture of the right clavicle and shoulder blade. The fracture of
the clavicle was treated surgically with implants. According
to the
evidence he will experience chronic pain in the shoulder for the rest
of his life. The plaintiff did not sustain any brain
injury.
[32]
In
Modisaotsile
v Road Accident Fund
[10]
a 19 year old female sustained a displaced right clavicle fracture
and some other orthopaedic injuries. As in
Silombo
the plaintiff also complained of pain in her clavicle during cold and
inclement weather. The plaintiff could not continue playing
netball
on social level and as a result of the collision she suffered from
psychological disturbances, including severe depressive
mood order,
post-traumatic anxiety disorder and an inclination to self-harm.
R400 000 was awarded which is equal to R420 000
in today’s
terms.
[33]
In
Vukeya
v Road Accident Fund
[11]
the full bench awarded R330 000 in respect of general damages on
appeal. The present day value thereof is R578 000. The
appellant
(the plaintiff in the court
a
quo
)
sustained a mild to moderate frontal lobe brain injury as well as
orthopaedic injuries such as a whiplash injury of the neck,
a lower
back injury and a fracture of the one metacarpal bone. Her short term
memory and personality were impaired whilst she was
suffering from
chronic headaches and depression. There was a risk that the plaintiff
might lose her employment.
[34]
In
GB
v Road Accident Fund
[12]
the plaintiff sustained a mild traumatic brain injury which caused a
major neuro-cognitive disorder, presenting in headaches, depression,

poor concentration and fatigue. She also struggled to control anger
and cried easily. Over and above the brain injury, she suffered
a
severe degloving injury of the scalp, fractures to both mandibles, a
contusion of the brachial plexus of the right shoulder with
a
possible rotator cuff injury. Notwithstanding plastic surgery, she
sustained permanent disfigurement. The award of R500 000
is
equal to R703 000 in 2024.
[35]
In
Monaisa
v Road Accident Fund (Monaisa)
[13]
the plaintiff suffered a concussive brain injury with subdural
bleeding and a basal skull fracture, as well as further injuries
to
his face and cervical spine. He suffered from constant headaches,
memory loss and verbal aggression to such an extent that he
could not
cope with his work and resigned. He experienced severe pain in the
mid and lower cervical vertebrae, both shoulders and
his neck. He
walked with a limping gait. The court accepted that his occupational
prospects had been compromised as a consequence
of the head injury
and ongoing intellectual difficulties. The award of R625 000 is
equal to a present day value of R934 000.
The orthopaedic
injuries in
Monaisa
are much more severe than
in
casu
.
[36]
In
MM
v Road Accident Fund (MM)
[14]
R850 000 was awarded which equals a present day value of
R1 085 000. The plaintiff suffered a moderate brain injury

and serious orthopaedic injuries,
inter
alia
a
compression wedge fracture of the L2, L3 and L4, fractures of the
tibia, fibula, right pubic rami and ischium. The plaintiff’s

social life changed completely insofar as she became anti-social,
irritable and short-tempered. The court accepted the diagnosis
of
post-traumatic neuro-cognitive/neuro-psychological disorder. The
orthopaedic injuries in
MM
are much more severe than
in
casu
.
[37]
In
Bismilla
v Road Accident Fund (Bismilla),
[15]
a 21 year old engineering student with an above average IQ, sustained
a concussive brain injury of moderate severity. His academic
results
suffered as a result and he had to repeat several subjects. The court
dealt with the problems experienced by the plaintiff
and held that
his conduct made him unreliable and would have a negative effect to
his employability as well as his expectations
in the labour market
and career progression. R700 000 was awarded which is equal to
R984 000 in 2024. In my view the
sequelae of the brain injury in
Bismilla
are far more serious than
in
casu
.
[38]
As indicated above, the range between the minimum and maximum awards
is quite
large. It is possible to refer to several other judgments
which are more or less comparable with the facts
in casu
.
However, caution must be exercised to blindly follow previous awards.
It is expected of the judicial officer to exercise their
discretion
based on the relevant facts in each case. It is also impossible to
rely on any kind of mathematical approach by awarding
specific
amounts for particular injuries as the injuries should be considered
in toto
.
Conclusion
[39]
Having considered the extent of the plaintiff’s injuries, their
sequelae
and the authorities quoted, I am satisfied that an amount of
R850 000 shall be awarded. The plaintiff as the successful party

is entitled to his costs. Fees of counsel shall be calculated on
scale B of rule 69 read with 67A(3).
[40]
This is an appropriate case where the funds to be awarded to the
plaintiff
shall be properly protected. The draft order presented to
the court makes provision for the creation of a trust in terms of the

draft deed of trust attached thereto. I am satisfied with the terms
thereof. Consequently, the draft order, amended in compliance
with
the outcome of this judgment, shall be made an order of court.
Order
[41]
The following order is made:
1.
The defendant shall pay the plaintiff the
amount of R850 000
(eight hundred and fifty thousand rand) for general damages in
respect of shock, pain, suffering, disfigurement,
disability and loss
of amenities of life, which amount shall be paid into the following
bank account:
Symington & de Kok
Attorneys
First National Bank
Account number: 5[…]
Branch code: 250 655
Reference: TR0706MXM2983.
2.
Defendant shall pay interest on the aforesaid
amount at the
prescribed rate of interest calculated 14 (FOURTEEN) days from date
of judgment to date of payment.
3.
The defendant shall be afforded a period of
180 calendar days from
the date of this order to effect payment herein during which period
the plaintiff will not be entitled to
issue a writ against the
defendant.
4.
The defendant shall pay the plaintiff’s
taxed party and party
costs on a High Court scale to date of this order which shall include
the travelling costs of the plaintiff,
as well as counsel’s
fees calculated on scale B of rule 69 read with rule 67A(3) and the
reasonable qualifying, preparation,
reservation and appearance fees
of the following experts (where applicable):
4.1
Dr M Jivan (general practitioner);
4.2
Dr JF Ziervogel (orthopaedic surgeon);
4.3
S van Jaarsveld (industrial psychologist);
4.4
L Delport (occupational therapist);
4.5
M Pienaar (neuropsychologist);
4.6
Human & Morris Actuaries;
4.7
Rikus van der Poel (clinical psychologist); and
4.8
Dr JA Smuts (Neurologist).
5.
Interest shall accrue at the prescribed statutory
rate in respect of:
5.1
the capital amount of the claim, calculated 14 (fourteen) days from

date of this order to date of final payment, in the event that
payment is not affected within the 180 days from date of this order

as per paragraph 3 above;
5.2
the taxed costs, calculated from 14 (fourteen) days from date of

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