CASE NUMBER-initials 0 JUDGMENT
YEAR-MONTH-DAY
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 39738/2020
DATE: 05-12-2024
In the matter between
MARIA IOLANDA PEDRO GOMES Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
WEIDEMAN , AJ : Matter number 32 on this week ’s roll is the matter
of Maria Iolanda Pedro Gomes and The Road Accident Fund, case
number 39739/2020. In preparing for the matter, I was concerned
about whether or not the plaintiff sustained a moderately severe or
a severe head injury.
If, as is reflected in the medical legal reports , the head injury is
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES / NO.
(3) REVISED.
DATE
SIGNATURE
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severe, then the question arises whether the plaintiff is capable of
providing her attorney with adequate instructions . If any significant
award is made, it should be considered whether she will have the
mental capacity to understand that it is her future income for the
rest of her life and that it should not be squandered on luxuries in
the short term , which would later leave her destitute.
I was uncomfortable whether the plaintiff should be allowed to
proceed with the matter on her own. I engaged counsel for the
plaintiff to confirm the severity of the plaintiff’s head injury .
Counsel’s instructions were that the plaintiff’s head injury was
severe and that the matter should proceed on that basis.
Having been presented with the plaintiff’s case that , in addition to
all other injuries , the head injury should be considered to be
serious , I ordered that a curator ad litem be appointed to ensure
that the plaintiff is properly represented if her head injury is indeed
severe.
Th is all happened on the 3
rd December 2024. On the 4 th December
2024 Adv Herman Kriel was formally appointed as curator ad litem
to the plaintiff .
The Court is very grateful for his willingness to, on very short
notice, become involved and to assist both the plaintiff and the
Court in ensuring that all relevant issues are properly aired and
canvassed and, at very short notice, to engage the plaintiff and
prepare a report . On the 5
th December counsel formally presented
the plaintiff’s case.
The accident from which this claim arose occurred on the 25 th July
2018. The plaintiff was born on the 6 th February 1981. On a
previous occasion the aspect of negligence was resolved on the
basis that the defendant shall be liable for 90 percent of such
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damages as the plaintiff may be able to substantiate . This
agreement was concluded on the 10 th November 2021.
The plaintiff sustained extensive and significant orthopaedic and
other injuries, consisting inter alia of the following: bilateral
acetabular fractures, a pelvic injury, a right knee dislocation,
multiple rib fractures, a hematoma of the liver, and blunt abdominal
trauma result ing in the rupture of her bowels leading to sepsis. She
further has m ultiple lacerations and scarring a s well as the severe
traumatic brain injury.
In investigating the plaintiff’s employment record, which was
modest and checkered , the industrial psychologist , Christa du Toit
prepared an original report and an updated report. The updated
report , on CaseLine s 012/385, contains a paragraph setting out her
proposed quantification of the claim for loss of income. I read from
her report:
“For quantification purposes and as it refers to the above
points there is no guarantee that Ms Pedro Gomes would
have continued earning on a par of what she earned at the
time of the accident. It is very difficult to detail earning
capacity but as a guideline it is suggested to refer to the
upper notch of semi -skilled workers (per Robert Koch) [R218
000] as a guideline for likely earnings with increases mainly
inflation based”.
Considered against the complete suite of medico legal reports , her
suggestion appears to be appropriate. A calculation by the actuary
Wim Loo ts based on th e proposal of the industrial psychologist
appears on CaseLines 012/399.
Having considered the figures in conjunction with the injuries and
its sequelae, the Court has no hesitation in accepting the
calculation.
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The Court accepts that the plaintiff’s claim , pre - contingency
deductions and pre - apportionment on liability , amounts to R999
565. If a 10 percent contingency is applied to this amount , the
figure is reduced to R899 608, which must be further adjusted by
the apportionment on negligence. Similarly, the Court has no
objection to the figure calculated in respect of future loss of
income , being R3 151 826 .
If a 25 percent contingency is applied to this amount to provide for
pre -existing conditions and non -trauma related co morbidities , the
amount , after applying the contingency deduction is R2 363 870.
If the combined amount for past and future loss of income and
impairment of earning capacity is adjusted to make provision for
the apportionment on negligence, then the net amount will be R2
937 130.20.
There is a small claim for past hospital and medical expenses in
the sum of R3946.35 and which, post apportionment on negligence ,
yields an amount of R3551.71. This amount will also form part of
the order.
The plaintiff shall naturally be entitled to have her future hospital
medical ancillary expenses covered by an undertaking. Th is leaves
only the aspect of general damages.
Having considered the extent of the polytrauma and the interaction
between the injuries and on the life and dignity of the plaintiff , the
case which resembles the position in which the plaintiff finds
herself most closely , bearing in mind that prior cases can only
serve as broad guideline, is the matter of Seme v The Road
Accident Fund 2008 (5) (A4) QOD33D.
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Based on these considerations, the plaintiff’s award in respect of
general damages will be the sum of R2 500 000 . Deducting the 10
percent liability apportionment from the above, results in a net
award of R2 250 000.
With Adv Kriel’s assistance, and based on his report the Court is
satisfied that the concern which was verbalised on the 3 rd
December was unfounded and that there is no need for the
protection of any funds awarded. On the same basis t here is also
no need for a trust or any other form of protection of the award.
My order is therefore as follows:
1. In respect of the plaintiff’s claim for past hospital medical
expenses the defendant shall pay the plaintiff the amount of
R3551.71.
2. In respect of the plaintiff’s claim for loss of income and /or
impairment of earning capacity , the defendant shall pay the
plaintiff the nett amount of R2 937 130.20.
3. In respect of the plaintiff’s claim for general damages the
defendant shall pay the plaintiff the nett amount of R2 250
000.
4. The defendant shall provide the plaintiff with an
Undertaking in respect of section 17(4)(a) of the Road
Accident Fund Act , limited to 90%, for such future hospital,
medical or ancillary expenses as the plaintiff may require.
The final aspect is that of costs. In respect of costs it follows that
the plaintiff is entitled to her party and party costs as taxed or
agreed.
As far as the scale applicable to counsel is concerned the matter is
certainly of significant value. It is complex, it contains aspects
which are not in the ordinary course , and it is the type of matter
which justifies an award of costs on scale C.
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The order in respect of costs must provide for the costs associated
with the appointment of the curator ad litem .
WEIDEMAN , AJ
JUDGE OF THE HIGH COURT
DATE : ……………….