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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 07136 /2013
Date of Hearing: 29 & 30 October 2024
Date of Judgment: 3 Febr uary 2025
• REPORTABLE: NO
• OF INTEREST TO OTHER JUDGES: NO
• REVISED: YES
3 February 2025
LIVHUWANI VUMA
In the matter between:
Adv FF DOCRATI NO in her capacity as Curator ad litem obo Plaintiff
TRUSHA CHESNEY NAIDOO
and
ROAD ACCIDENT FUND
Defendant
JUDGMENT
INTRODUCTION
[1] On 1 6 July 2009 at approximately 15h30 and on Athol Road, Highlands North,
Johannesburg , a collision occurred between motor vehicle with registration numbers
T[...] 5[...] G[...] being driven by Helena Petronela Huvers (“the first insured driver”)
and motor vehicle with registration numbers N[...] 8[...] G[...] being driven by Kaylin
Naidoo (‘the second insured driver”).
[2] Trusha Chesney Naidoo (“t he plaintiff / Trusha”) was a passenger in the motor
vehicle being driven by the second insured driver at the time of the collision.
[3] The plaintiff instituted action for damages against the Road Accident Fund
(“RAF”) in terms of s17(1)(a) of the RAF Act 56 of 1996, as amended, as the
statutory insurer. In paragraph 9 of the plaintiff’s 2015 amended particulars of claim
the plaintiff claim ed damages in respect of:
3.1 Past hospital and medical expenses R110 000.00
3.2 Estimated f uture medical expenses Undertaking
3.3 Future loss of income inclusive of
Future loss of employability R6,590,827 .00
3.4. General damages R700 000.00
TOTAL R7,400,827 .00
BACKGROUND
[4] On 29 October 2024 t he plaintiff filed a notice in terms of rule 28(10) of the
Uniform Rules of Court (“URC”) amend ing the quantum claimed in 2015 in respect of
the general damages to an amount of R1 6000 000.00. The defendant oppose d the
proposed amendment. I reserved judgment in respect hereof.
[5] Prior to the matter serving before me on 29 and 30 October 2024 , the
defendant had conceded liability. All the heads of damages bar the general damages
had already been expedited one or another . On 13 December 2016 Trusha was
awarded the sum of R6,300,436.00 for Past and future loss of earnings. On 25 June
2020 His Lordship Wanless AJ set aside and substituted the decision of the Health
Professions Council of South Africa (“HPCSA”) and declared Trusha’s injuries to be
serious , further declaring that Trusha is entitled to general damages.
[6] ISSUE FOR DETERMINATION
In light of paragraph 5 above, the only issue remaining for deter mination by this court
is the quantum in respect of the general damages.
PRELIMINAR Y ISSSUES
[7] Ms D Goodenough appeared for the plaintiff and Mr T Ngomana for the
defendant.
[8] At the commencement of the trial, i.e., on the very morning of the trial, the
defendant’s counsel raised two in limine issues namely:
a. That the declarator made by the review court (Wanless AJ) on 25 June
2020 in terms of which the court set aside and substituted the decision of
the HPCSA and declar ed Trusha’s injuries as being serious and further
that Trusha’s is entitled to general damages was ultra vires . In light of the
binding and final nature of the HPCSA’s decision /s, the review court ought
to have, it was argued, limited itself to only the setting aside of the
HPCSA’s decision and referred the matter back to the HPCSA for the
matter to be heard de novo or reconsideration ; and
b. On the basis of the submission in paragraph 6.a above , the defendant
thus argued that this court lacks jurisdiction to hear this matter and that it
ought therefore to refer the matter back to the HPCSA for reconsideration.
It was further submitted that the reason why the defendant withdrew its
notice to oppose the plaintiff’s 2020 application for the review of the
HPCSA’s decision was due to its appre hension that the review court
would limit itself only to the reviewing and setting aside of the HPCSA’s
decision whilst simultaneously ordering the reconsideration of the
impugned ruling by the HPCSA. It was submitted that th is court must in
the premises order the removal of th is matter from the roll pending the
rescission application by the defendant. To this end, the defendant
tendered the wasted costs.
[9] In resisting the defendant’s in limine issues, the plaintiff’s counsel raised
multiple points; that, firstly, the defendant withdrew its notice to oppose the plaintiff’s
2020 review application, this despite the plaintiff’s Notice of Motion including a
paragraph seeking the review court to substitute the HPCSA ’s decision with its own.
Hence the review court substituted the HPCSA’s ruling having found the existence of
exceptional circumstances entitling it to do so. Secondly , the HPCSA had equally
withdrawn its notice to oppose the review application a ccompanying its withdrawal
notice with a notice to abide by the review court’s decision.
[10] The plaintiff further argued that the defendant was acting mala fides in light
of the fact that it also admitted the issue of the general damages in the pre -trial
minute signed on 7 February 2023. She also submitted that even when the plaintiff
applied for the matter to be declared trial ready for the allocation of a trial date, t he
defendant did not oppose same nor raise the issue of remitting the issue to the
HPCSA for reconsideration . She submitted that in the absence of the defendant not
having withdrawn its admission in the pre -trial minute in regard to the plaintiff’s
entitlement to the general damages , the defendant is bound by it s admission . She
further argued that the defendant was simply intent, to the plaintiff’s prejudice, on
wasting the court’s time with its frivolous preliminaries , further submitting that if this
court was with her on her submissions, it therefore stands to reason that its
jurisdiction to hear their matter was above board. She asked for the dismissal of the
defendant’s points in limine with costs on a punitive scale.
[11] On their end t he plaintiff brought an application in terms of rule 28(10) of the
Uniform Rules Of Court (“URC") to amend the claimed general damages amount to
be increased from R700 000.00 (SEVEN HUNDRED THOUSAND RAND) to R
1 600 000.00 (ONE MILLION SIX HUNDRED THOUSAND RAND) , arguing that the
defendant will not suffer any prejudice considering that it had not made any offer to
the plaintiff hitherto. Rule 28(10) allows for an amendment at any stage before
judgment. The defendant opposed the proposed amendment, arguing that the
defendant st ands to suffer prejudice and further that the application was defective in
that it was, inter alia , not compliant with rule 28(1) of the URC. Even before the
defendant had noted its objection to the proposed amendment, the plaintiff had
alrea dy effected the amendment by uploading the amended pages onto Caselines at
09:15 , the defendant added . The plaintiff apologised for the uploading and
committed to removing the uploaded amended pages there and then. The plaintiff
ought to accordingly withdraw its proposed application and bring a substantive one
given the substantial amount sought by the proposed increment , the defendant
further argued .
[12] I n regard to the defendant’s in limine points, I considered the m and found
them to be a total waste of the court’s time, having taken into account of course, inter
alia, the age of Wanless AJ’s review judgment, almost four years at the time of the
hearing of the in casu trial. It is common cause that when moving this application
before me the defendant had not even filed their papers yet to challenge the now
impugned review judgment. Accordingly I dismissed the application with costs on a
punitive scale against the defendant .
[13] As regards the plaintiff’s proposed amendment application, I reserved my
judgment as already stated in paragraph 4 above .
EXPERT REPORTS
[14] Both the plaintiff and the defendant had filed their expert reports in 2015 and
2016 respectively .
THE PROCEEDINGS
[15] To establish a causal link between the accident and the injuries sustained by
the plaintiff and the sequalae thereof and for purposes of the plaintiff’s general
damages claim , the plaintiff argued her entire case placing by reliance on the
judgment by the honourable Windel J (“Windel J”) . She argued that this is so in view
of the fact that the defendant did not defend the said case in which her expert
witnesses (the plaintiff’s) also testified and their medico -legal reports were accepted
as evidence by Wind el J. For the record t he said hearing involved head of damages
not serving before this court . The plaintiff thus argued that to the extent that the said
expert evidence remains unchallenged, it must therefore prevail and be binding
upon this court. She argued that it is in line with this apprehension that she
dispensed with the requirement to bring an application in terms of rule 38(2) of the
Uniform Rules of Court in terms of which a request to a court to allow evidence to be
presented in the form of an affidavit or to read a witness’ s affidavit during a trial is
made. She submitted that it is for the above reasons that she will be placing reliance
on the findings by Windel J in her case since her experts evidence remains
uncontroverted. The reverse of this apprehension, plaintiff argued, means that the
defendant cannot rely on and/or use its own experts reports since there was, inter
alia, no affidavits by the said experts in respect of their reports nor such experts
being present/available in court to testify viva voce .
[16] The defendant objected to the plaintiff’s suggested approach and view,
arguing that in fact the plaintiff was imposing the Windel J judgment upon this court,
arguing further that in the absence of rule 38(2) application before this court, the
plaintiff’s witnesses , experts and all, must give evidence before this court so as to
afford this court to make its own judgment call regarding the evidence to be relied on
by the parties. Rather, the defendant further argued, the plaintiff should have let
Windel J adjudicate over the issue of the general damages instead .
[17] Having considered the submissions by both counsel and the evidence that
served before Windel J as presented by the plaintiff and accordingly accepted as
such by Windel J , I came to the conclusion that the said evidence, to the extent of its
relevance in so far as the general damages claim is concerned, is accepted as
evidence before this court. With this appreciation , I resultantly deal with the relevant
expert reports hereinaf ter.
[18] The plaintiff’s experts are the following:
[19] Dr E. Schnaid (Orthopaedic surgeon)
19.1. Dr E. Schnaid stated the following:
19.1.1 That according to the plaintiff herself she was involved in a
motor vehicle accident whilst being a passenger in a motor
vehicle that collided with another motor vehicle. She was
transported to Linksfield Clinic by an ambulance and
hospitalised for approximately three days.
19.1.2. She had sustained :
a. Fracture d right radius and ulna;
b. Soft tissue injury of the cervical spine;
c. Soft tissue injury of the lumbar spine ; and
d. Head injury with loss of consciousness for a few minutes.
19.1.3 Treatment received:
a. X -rays;
b. Cervical collar given to immobilise the cervical spine;
c. Analgesiscs;
d. Open reduction internal fixation of the right radius and
immobil isation of forearm; and
e. 2010 removal of the fixation.
19.1.4. He stated the p laintiff’s status at the time of her examination on
7 April 2014 as follows :
She had pain in the cervical spine with radiation into right
shoulders with pain in the lumbar spine and the right forearm as
well as headaches. The pain is weather related. She couldn’t
walk long distances or sit or stand for long periods or run. She
couldn’t climb stairs and cannot lift or carry heavy objects. She
was depressed and experienced pins and needles in the right
hand.
19.1.5. Amenities:
Prior to the accident, she used to swim. This she no longer does.
She can manage daily household chores, although with
difficulties.
19.1.6. On examining the plaintiff, the Doctor noted:
The Head, Neck & Cervical spine to be intact. The carotid pulses
are palpable. On examination of the cervical spine, the plaintiff
was noted to have a 30 degrees restriction of all the cervical
movements with pain that h as persisted since the accident in
2009 . Her cervical symptoms will persist despite treatment.
Forearms/ Elbows/Hands/Wrists
10cm anterior surgical scar on the right radius. 30 degrees
supination and a 3 0 degrees pronation deficit of forearm.
Lumbar spine
The plaintiff was unable to touch her toes. All lumbar movements
are restricted to 30 degrees. Bilateral straight leg raising 45
degrees. Decreased sensation n the left thigh. In late middle
age, nerve impingement and instability may develop requiring a
lumbar fusion
19.1.7. Pain, suffering, amenities and permanent damage:
-Re Pain and suffering, the pain the plaintiff endured was
severe. She still experiences pain in the cervical spine,
lumbar spine and right forearm with associated headaches.
-Re Amenities, these have been negatively affected. She can
manage household chores although with difficulty, all
ambulatory as well as manual functions will be restricted.
19.1.8. The Doctor’s summary is that the plaintiff sustained multiple
injuries in a motor vehicle accident in 2009. The plaintiff now
has pain in the cervical spine radiating into right shoulders,
lumbar spine and right forearm with associated headaches. A
poor outcome from the suggested treatment can be
anticipated. There is a serious long term impairment with a
loss of body function.
19.1.9. Lastly the Doctor notes that he agrees with Dr R.F Scott’s X -
Rays’ findings.
[20] Mr Chris Sampson (Clinical Psychologist / Neuropsychologist )
20.1 Mr Chris Sampson noted the following:
20.1.1. That Trusha complained of post -concu ssive headaches,
associated dizziness, nausea, visual impairment, forgetfulness,
emotional reactivity and that in light therefore post -traumatic
stress disorder would be expected to have a further negative
impact on her coping.
20.1.2. Psychologically and psychiatrically, Trusha is left more
vulnerable than before the accident. She presented with a
number of neuro -behavioural and psycho -emotional symptoms
which included but not limited to somatic concerns, mood
changes, personality changes, apathy, reduced tolerance
frustration, chronic fatigue, decreased motivation and drive,
irritability, lack of enthusiasm, and a detached disinterested
attitude. In addition from test observation poor self -monitoring,
poor self -regulation, low task perseverance and decreased
ability to inhibit impulsivity were also evident. All of the afore -
mentioned symptoms were suggestive of psycho -organic
changes brought about by the head injury.
20.1.3. He noted that the neurosurgeon, Dr Segwapa, has diagnosed a
mild concussive injury. However, he (Mr Sampson) notes that
the current research by the Centr e for Disease Control (“CDC”)
in Ontario states that there are a distressing number of cases
which are not consistent with the popular held expectation that
all individuals with mild head injuries recover. “.. Many people
with mild traumatic brain injury (“MTBI”) have difficulty returning
to activities and may be unable to return to work for many
weeks or months …”.
[21] Dr Conrad Visser (Psychiatrist )
21.1 Dr Conrad Visser stated that his addendum report is drawn from the
psychological report prepared by Ms Maluleke on behalf of the defendant
and the neuropsychological assessment report drawn up by Mr Chris
Sampson, Trusha’s clinical psychologist.
21.2 Accordingly, he noted the following:
21.2.1. That Trusha suffered the following injuries in the accident:
Fractured distal right radius and ulna; soft tissue injuries of
the cervical and lumbar spines; and that Trusha’s account is
consistent with the occurrence of mild concussive head
injury.
21.2.2 That Trusha was a psychologically vulnerable individual
before the accident, althoough overt pathology had not
manifested. The emotional and behavioural disturbances in
keeping with Borderline Personality emerged following the
psychological trauma of the accident and her responses to
physical injury, like the loss of her ability as a swimmer.
Although a different stressor might have precipitated her
psychopathology at any time following the accident, in her
unique case, the index accident - and its consequences - has
proven to be that precipitant. At the time of her examination in
2016, her emotional and behavioural disturbances were
serious.
[22] Ms Anoett Rossouw (Occupational Therapist)
22.1 Ms Anoett Rossouw stated that she examined Trusha on 13 May 2014 and
based her examination on the medico -legal report of Dr Schnaid, the
orthopaedic surgeon and the RAF1 for m. From her examination, she posited
the following:
22.1.1. In regard to the headache:
- Symptoms reported: Occipital frontal headaches aggravated
with involvement in sedentary postures or activities.
- Diagnosis: Neck pathology (by Dr Schnaid)
- Clinical findings: 1. Tight para -spinal spasm is palpated at the
neck with trigger points at C2 and C5.
2. Pronation and supination is limited in the
mid to end ranges.
- Functional: 1. Neck pain or headache was not reported or
elicited on the day of the evaluation.
2. Considering the clinical findings and spasm,
it is likely that she experiences muscle -
skeletal pain and tension headaches as
reported to be aggravated with tolerating
static postures.
22.1.2. In regard to the right arm :
- Symptoms reported: Cramping, stiffness and pain aggravated
with involvement in activity and cold weather.
- Diagnosis: Restricted pronation and supination.
- Clinical findings: 1. Right arm: 9cm surgical scar on the radial
area of the right arm and a 9cm surgical
incision scar on the dorsal ulna area.
2. Pro and supination is limited in the mid
to end range.
3. No atrophy or swelling is measured.
4. Grip strength of the right dominant hand
is expected to be stronger and is slightly
diminished and below the norm ranges at
both hands.
- Functional: 1. Pain at the right arm was not elicited or reported
when tolerating consecutive writing for 12
minutes.
2. Pain was elicited during light to medium load
lifting and carry to affect her at the right elbow to
a level 8/10 indicated…
3. She has functional dexterity and hand function
but mild pain at the right wrist is reported when
tolerating intermittent dexterous tasks after 15
minutes at a level of 3/10 indicated.
4. The impact of limited range of motion of
professional swimming could be addressed and
commented on further by a Biokineticist.
22.1.3. In regard to the lower back :
- Symptoms reported: Lumbar pain aggravated with bending or
long standing or sitting. with involvement in activity and cold
weather.
- Diagnosis: Lumbar pathology by Dr Schnaid.
- Functional: Pain is reported to affect her more on the r ight.
Pain is specified to be on the right thoraco -lumbar upon
arrival at a mid -level of 3/10. Pain aggravates to a level of
7/10 when tolerating stooping for light physical work. During
dynamic lifting and carrying pain at a level of 6/10.
22.1.4. In regard to the right knee :
- Symptoms reported: Mechanical aggravation of pain.
- Diagnosis: Deferred to the Orthopaedic Surgeon.
- Functional: 1. Mechanical knee pain is elicited and reported
during squatting to a level of 6/10.
2. She compensates with increased weight on
the left leg during repetitive squatting.
22.1.5. In regard to the Psychosocial : Trusha reported symptoms of
anxiety and depression that seems to be related to the accident under
review. Ms Rossouw deferred to the Clinical psychologist.
22.1.6. In regard to the Cognitive/Neurological :
- Symptoms reported: Difficulty with memory.
- Diagnosis: Deferred to the Neurosurgeon and Clinical
Psychologist specialising in Neurology.
- Clinical findings: She has a functional physical neurological
ability.
- Functional: Functional ability demonstrated to meet open
labour standards for basic administrative task with adequate
memory.
22.1.7. In regard to life amenities :
- Trusha was involved in an accident and sustained a
concussive head injury as well as injury to the spine,
dominant right hand and right knee that resulted in persisting
pain and functional limitations.
- She was a competitive swimmer at the time and due to the
injury to the right arm was unable to continue at the pre -
morbid level and she eventually gave up despite several
attempts to resume participation in the spot. She feels it
caused disruption to her future and professional swimming
career. It is conceivable that with the limited range of motion
at the arm that her strokes would be affected. It should be
commented on further by a sport specialist.
- She experiences persisting mechanical spinal pain,
headaches and limited ability to care for her toddler due to
the pain. She is not responsible for strenuous domestic
tasks that she avoids and also experiences functional
limitations. She is likely to depend on some assistance for
as long as symptoms persist.
- She experienced significant emotional psychosocial
suffering due to the sequelae of the impairment and
functional limitations experienced. She had failed suicide
attempts. Ms Rossouw defers this aspect to a clinical
psychologist. The quality and enjoyment of life is
compromised and affected by the sequelae of the injuries
sustained in the accident.
[23] Ms Rosalind Macnab (Educational Psychologist)
23.1 Ms Macnab stated the following :
23.1.1. That whereas Trusha’s pre -accident intellectual ability was
probably one of high average ability, her post -accident profile
reveals areas of neuro -cognitive deficits which will inevitably
thwart her future academic progress. Her deficits as outlined by
the educational and neuropsychological assessments will
inevitably result in her inability to manage post -matric studies. To
date she has attempted to complete a diploma in travel and
tourism but was unable to complete her studies. As a result, her
occupational potential has significantly been impacted.
23.1.2 There is no history of learning problems or mental illness in the
family.
23.1.3. Pre -morbidly, Trusha had never suffered a head injury nor lost
consciousness and there was no history of febrile convulsions,
brain -related diseases or epileptic seizures.
23.1.4. Post -accident, Trusha had been hospitalised after a suicide
attempt in her Grade 12 year (2012). She was admitted to
Lenmed Clinic in Lenasia after an overdose. She remained there
for a week and was prescribed anti -depressant medication as
well as sleeping pil ls. She reported that she was prescribed a
month’s supply of anti -depressants and when they were finished
she did not renew the prescription. Trusha reported that this was
her third suicide attempt.
[24] Dr L.F. Segwap a (Neurosurgeon)
24.1 Dr Sekwap a stated that :
24.1.1. Pre -accident, Trusha enjoyed a healthy physical life. Her accident -
related injuries are:
a. Head injury
- She sustained a mild concussive head injury as confirmed by
reported transient period of amnesia and the fact that she was
experiencing headaches , which implies there was a cranial
impact.
b. Spinal injury
She sustained soft tissue injuries to the cervical and lumbar
spine.
c. Skeletal injury
She also suffered fracture of the right radius and ulna -opinion
deferred to the orthopaedic surgeon.
24.1.2. Post -accident, Trusha has no neuro -physical impairments. Her
post-accident status is the following:
a. Neuropsychological
She has neurocognitive impairments and depressive disorder
with suicidal ideations.
b. Future compliications
The risk of developing epilepsy is currently the same as that of
the normal population.
c. Future medical treatment
- She will require further management of the headaches, which
require analgesics.
- The cervical spine disease can be managed conservatively
with analgesics and physiotherapy. There is a 5% chance that
surgical intervention in the form of fusion amongst others will
be required in the future.
- The lumbar spine disease can be managed conservatively
with analgesics and physiotherapy. There is a 5% chance that
surgical intervention (which includes among others
discectomy and instrumentation with fusion) will be indicated
in the future.
d. Pain and suffering
- Trusha suffered acute pain for 2 weeks after the accident.
She has suffered chronic pain to date.
- She is suffering from post -concussion headaches . It is well
documented in the neurosurgical literature, Dr Segwapa
states, that ± 80% of patients suffering from post -concussion
headaches recover within 2 -3 years. However ± 20% of
patients remain with the chronic symptoms.
e. Amenities of life
She lost amenities of normal living since being involved in the
accident.
THE PLAINTIFF’S LIST OF AUTHORITIES
[25] These are some of the authorities relied on by the plaintiff:
1. M v Road Accident Fund (514/2019) [2024] ZANCHC 21 (8 March
2024)
The 2024 valuation awarded is R1 200 000.00 for general damages to a
minor boy who had suffered mild to moderate head injury; headaches;
aggression; personality disorder change; memory loss; neurocognitive
and neuropsychological problems; permanent brain injury; broken left leg;
back injury; hearing loss and vertigo.
2. Tyabazeka v Road Accident Fund (CA 72/2022) [2023] ZAE CMKHC
48 (25 April 2023) (Full bench Appeal)
The 2024 valuation awarded is R1 441 000.00 for general damages to a
17 year old girl who was in Grade 12 at the time of the accident who had
suffered a skull fracture; moderate TBI; orthopaedic injuries; nerve
damage; bad scarring; PTSD; psychiatric injury; anxiety disorder; major
depression; pain; and left drop writ.
3. Masemola v Road Accident Fund [2023] ZAGPPHC 553; 17336/2017
(2 July 2023)
The 2024 valuation awarded is R1 248 000.00 for general damages to a
36 year old woman who has suffered a mild TBI; broken leg; both
shoulders injured; post traumatic osteo -arthritis; facial scarring; major
depressive disorder; PTSD; headaches. No neurocognitive problems
suffered; She could still work although in need of an early retirement.
4. Kuku v Road Accident Fund (232/2015) [2023 ] ZAFSHC 314 (11
August 2023)
The 2024 valuation of the award is R1 470.000.00. The plaintiff, a 36
machine operator, had suffered a head injury; unconscious for 3 days;
PTA; blurred left eye vision; headaches; cannot be left alone at home;
scarring on the head and face.
5. Mahachi v Road Accident Fund (20748/2013) [2018] ZAGPPHC 405
(25 May 2018)
The 2024 valuation of the award is R 1 391 850.00 . The plaintiff , a 31 year
old woma n, had sustained a severe head injury; facial scarring;
psychological trauma; headaches; degenerative changes in knee joint.
She as still employable post-accident although to a lesser expression.
She suffered from depression.
THE DEFENDANT ’S LIST OF AUTHORITIES
[26] The defendant relied on the following past awards:
1. Sithole v Road Accident Fund [2023] ZAGPPHC 252; 35916/18 (27
March 2023)
The plaintiff was awarded R750 000.00 for general damages. She had
sustained a brain injury (GCS 13/15); severe injury to the right arm; rigid
and distended stomach; severe body pain; soft tissue injury to the neck;
and shock and psychological trauma.
2. Kaduku Prince v Road Accident Fund NGHC Case number
83408/2014 March 2017
The 2024 valuation awarded is R 914 727.27 for general damages. The
plaintiff had suffered a left tibia and fibula fracture and a head injury with
a laceration of the scalp. An open reduction and internal fixation with
tibial nails was done for the left tibia fracture. He was treated medically
for the head injury and the scalp laceration was sutured. He was kept in
hospital for a month. The neurosurgeon reports that the plaintiff
sustained blunt head trauma, evidenced by multiple scars on his scalp.
He lost consciousness at the accident scene. On arrival at the hospital
he was semi -conscious with a Glasgow coma scale of 12/15 to 13/15
which improved to 15/15 the following day after treatment . CT brain
showed mild brain oedema.
3. Abrahams v Road Accident Fund Case number: 1531/2010 (ECLD)
29 May 2012
The 2024 valuation awarded is R 811 888.11 for general damages.
The plaintiff, a 41 year old male, suffered a badly comminuted fracture of
the femur; fracture of the fibula and patella; fracture of the right
malleolus; severe soft tissue injury of the hand and a mild concussive
head injury. He underwent surgery of an open and internal fixation of the
femoral fracture, an open reduction of the patella fracture with fixation;
an open reduction and internal fixation of the malleolus. Subsequent
surgeries for the removal of the fixatives at the patella and a revision of
the non -union of the fibula malleolar fracture were performed. The right
limb was shortened with the need for an assistive device. Osteoarthritis
was present in the left knee and there was limitation of range of motion
in the right hip, knee and ankle.
4. Donough v Road Accident Fund (8962/06) [2010] ZA GPJHC 100 (5
November 2010)
The 2024 valuation awarded is R 651 683.00 for general damages.
The plaintiff, a 30 year old woman sustained a head injury causing
her fati gue, headaches, visual impairment, impairment of cognitive
mental function; depression; emotional difficulties of a permanent
nature; a knee injury causing her pain which became aggravated in
extreme weather.
THE PLAINTIFF’S SUBMISSIONS
[27] It is submitted on behalf of t he plaintiff that the past awards referred to by the
defendant are not comparable to Trusha’s case whose overall profile of sequelae is
significantly worse than the plaintiffs cited by the defendant. It was argued that an
award in the sum of R1,300 000.00 would represent a fair compensation to Trusha.
[28] The plaintiff argues that unlike Trusha, not a single one of the
claimants/plaintiffs mentioned in the defendant’s past awards:
28.1. Was placed under curatorship;
28.2. Tried to commit suicide several times or at all;
28.3. Is permanently unemployable;
28.4. Has displayed violent outbursts on a number of occasions;
28.5. Has behavioural problems;
28.6. Suffers with features of post -traumatic accident -related borderline
personality disorder;
28.7. Was robbed of a passionately held dream for the future; or
28.8. Suffers from social withdrawal.
[29] The plaintiff further submitted that despite the defendant’s objections, Windel
J had found in her judgment that the plaintiff’s injuries were severe.
[30] In regard to the defendant’s argument that the plaintiff’s parents divorce
contributed to her sequelae, plaintiff’s counsel contended that the defendant ought
then to have pleaded and proved this factor, which it did not. Even Dr Visser, i.e, the
plaintiff’s psychiatrist, her evidence which was not challenged was that the plaintiff’s
life changed after the accident. She further argued what is trite is that you take your
victim as you find them.
[31] In regard to the general costs, she submitted that a punitive costs award
against the defendant would be appropriate for the following reasons:
a. The defendant failed to make an offer even after the plaintiff sending almost
62 (SIXTY TWO) emails .
b. The defendant failed to respond to a special pre -trial conference as per
practice directive , resulting in there being no joint practice note filed by the
parties flowing from the special pre -trial conference which ought to have
been held .
c. The defendant did not file an y practice note .
d. The defendant did not file any Heads of argument.
e. The defendant’s disingenuous and mala fides attempt to withdraw its formal
admissions in the pre -trial minute of 2023.
f. The defendant’s attempt to secure a postponement by raising points in
limine impugning the review court’s invocation of PAJA (“Promotion of
Administrative Justice Act”) to substitute the HPCSA tribunal decision.
g. The defendant spent considerable time arguing that the plaintiff ought to
have submitted rule 38(2) application, despite having admitted in the pre -trial
minutes that the plaintiff’s injuries and the sequelae are as stated in the
Windel J judgment. Furthermore, the evidence and factual findings in the
Windel J judgment during the tri al were unchallenged.
THE DEFENDANT’S SUBMISSIONS
[32] The defendant argued t hat the authorities relied on by the plaintiff are not
comparable in respect of both the age and the sequelae. Trusha ’s orthopaedic injury
had healed. In regard to the plaintiff’s emotional difficulties, her parents’ divorce
should also be factored in as being contributory to her emotional/psychological
condition. Furthermore, the injuries and the sequelae suffered by the plaintiffs in the
authorities cited by the plaintiff in casu are far severe in comparison . He cited the
matters Tyabazeka , Masemola , Maha chi and Kuku as examples. He further
submitted that the plaintiffs who sustained injuries and sequelae similar to the
plaintiff herein received a far lesser award than the one sought by Trusha whose
injuries and sequelae thereof were lesser.
[33] In respect of costs, the defendant submitted that the costs be awarded on the
normal scale of party and party since the plaintiff does not have an automatic right
entitling her to an offer.
THE PLAINTIFF’S APPLICATION FOR AN AMENDMENT OF QUANTUM IN
RESPECT OF THE GENERAL DAMAGES CLAIM
[34] It is common cause that on the morning of the trial herein the plaintiff brought
an application for the amendment of her R700 000.00 claimed quantum for general
damages, thereby seeking an increase to the proposed R1 600 000.00. The
defendant opposed the application, citing prejudice on the part of the defendant
given, inter alia , the truncated time period by the plaintiff. Having considered the
facts and the submissions made by both parties, and the fact that the defendant had
never at any stage made an offer to the plaintiff, I find that the defendant will not
suffer any prejudice where this court to grant the proposed amendment. In fact, in
my considered view, it is in fact the plaintiff who will largely suffer prejudice if the
proposed amendment was not granted given what exactly was argued by the plaintiff
that sight ought to be had of the CPI factor from the date the summons was issued,
i.e., 2013, to date. The protracted time lapse without a doubt affected the value of
the rand. Accordingly, the proposed amendment application is granted and for
practical reasons, hereby effected.
ANALYSIS
[35] On the conspectus of the evidence before me, I am satisfied that Trusha
sustained the following injuries: fractured distal right radius and ulna; soft tissue
injuries of the cervical and lumbar spine. As per Dr Conrad Visser, in addition to the
other experts, I find that Trusha ’s account is consistent with the occurrence of mild
concussive head injury. What needs to be determined by this court the award that
represents fairness and reasonable ness , taking into account the Trusha ’s injuries
and the sequelae thereof vis-à-vis the comparable authorities. It is trite that g eneral
damages are often determined by comparing cases under scrutiny and those
previously decided. It is generally accepted that previously decided cases are never
similar and that their purpose stops at comparing them to the current.
[36] In Pitt v Economic Insurance Company Ltd (D) 287 E -F 1957 (3) SA 284 it
was held that the compensation “must be fair to both sides – it must give just
compensation to the plaintiff, but must not pour out largesse from the horn of plenty
at the defendant’s expense ”
[37] In Protea Insurance Co. v Lamb 1971 (1) SA 530 (SCA) , the court held
that:
“In assessing general damages for bodily injuries, the process of comparison
with comparable cases does not take the form of a meticulous examination of
awards made in other cases in order to fix the amount of compensation, nor
should the process be allowed to dominate the inquiry as to become a fetter
upon the Court’s general discretion in such matters. Comparable cases, when
available, should rather be used to afford some guidance in a general way
towards assisting the Court in arriving at such an award which is not
substantially out of general accord with previous awards in broadly similar
cases, regard had to all the factors which are considered to be relevant in the
assessment of general damages. At the same time, it may be permissible, in
an appropriate case to test any assessment arrived at upon this basis by
reference to the general pattern of previous awards in cases where the
injuries and their sequelae may have been either more serious or less than
those in the case under consideration .”
[38] As was held by the Supreme Court of Appeal (“SCA”) in the matter of Road
Accident Fund v Marunga [2003] (5) SA 164 (SCA) para 23 , for the court to award
general damages which comprise of pain and suffering; disfigurement; permanent
disability and loss of amenities, it has to exercise a wide discretion in what it
considers to be fair and reasonable to compensate the plaintiff.
[39] Having had regard to the cases relied on by both parties and their respective
submissions for and/or against same, particularly in regard to the injuries sustained
by the plaintiff and their sequelae, I am satisfied that an amount of R 850 000.00
(EIGHT HUNDRED AND FIFTY THOUSAND RAND) for general damages would be
a fair and reasonable award under the circumstances.
[40] In view of the fact that this court found in favour of the plaintiff, in line with the
trite approach that costs should follow the result except in exceptional circumstances
which I find none in existence in this matter, the plaintiff is entitled to costs. Next for
consideration is the issue regarding what costs scale this court should award
considering that the issue of costs is entirely in the court’s discretion. Having
considered the submissions by both counsel and the totality of the evidence bef ore
me, I am satisfied that an appropriate costs order in this matter would be one of party
and party scale . The reason for same is that the court order to be made herein
permits payment by the defendant for the 60 -odd emails sent to the defendant by the
plaintiff seeking settlement offers to no avail. Furthermore, the court already
sanctioned the defendant in regard to its attempt to stall the trial herein by impugning
the 2020 review order/judgment as it awarded a punitive costs order against the
defendant.
[41] In so far as what costs scale the curator ad litem should be awar ded, the
plaintiff seeks the said costs on scale C while the defendant asks that such costs be
awarded on scale B . The defendant’s argument is that it is in fact the trial advocate
who does/did all the primary work in preparation for trial and not the curator,
especially since there is only one Head of damages for determination before this
court. I am accordingly persuaded by the defendant’s argument.
[42] In the result, I make the following order:
ORDER
1. The plaintiff’s application for leave to amend her particulars of claim by
deleting the amount of R700 000.00 claimed for general damages and
substituting it with the figure of R1 600 000.00 is hereby granted.
2. The defendant is directed to pay the plaintiff’s costs incurred on 29 October
2024 in respect of arguing the defendant’s application for a postponement
on an attorney and client scale.
3. In respect of the claim for general damages for Chesney Naidoo, an adult
female with identity number 9[...] (hereinafter referred to as “Trusha ”),
arising from the motor vehicle collision which occurred on 16 July 2009, the
defendant is directed to pay the plaintiff on behalf of Trusha the sum of
R 850 000.00 (EIGHT HUNDRED AND F IFTY THOUSAND RAND ).
4. The capital amount in the sum of R 850 000.00 (EIGHT HUNDRED AND
FIFTY THOUSAND RAND ) shall be paid into the trust account of
Plaintiff's attorneys of record, Wadee and Wadee Attorneys, within 180
(one hundred and eighty) days of the date hereof, whose details are as
follows: -
Name of Account: Wadee & Wadee Attorneys Trust Account
Bank: First National Bank
Branch Code: 2[...]
Account No: 6[...]
5. In the event that the Defendant fails to pay the full capital amount within
180 (One Hundred and Eighty) days hereof as stipulated in para 3
above, then in that event, t he Defendant shall be liable for interest at the
prevailing legal rate on the capital amount or any part still owing, a
tempore mora from 15 (fifteen) days after this Court Order, to date of
final payment.
6. The Plaintiff’s attorney, Wadee & Wadee Attorneys, shall be entitled to
deduct from the aforesaid capital amount, their total approved
disbursements and fees for professional services rendered, as approved
by the trustees of the Trusha Chesney Naidoo Trust, which fees shall be
approved by the Trustees within 14 days of presentation of the attorney
and client bill to the Trust.
7. After deduction of the Plaintiff’s attorney’s disbursements and fees, the
remaining amount of the award for general damages, shall be paid
within 5 (five) days into the bank account operated by the Trusha
Chesney Naidoo Trust for the sole benefit of TRUSHA .
8. In addition to the costs order specified in paragraph 2 above, t he
Defendant is directed to pay the Plaintiff’s costs of the action to date on
the scale as between party and party which costs shall include but not be
limited to, inter alia :
8.1. the plaintiff’s attorney costs of this action;
8.2. all preparation costs including the 62 (sixty -two) settlement
proposals forwarded to the defendant herein;
8.3. all appearance fees on trial up to and including 30 October 2024;
8.4. the costs consequent upon the employment of counsel on Scale
C;
8.5 the fees of the Curator ad litem on Scale B.
9. The aforesaid costs are to be paid by the Defendant directly into the trust
account of the Plaintiffs’ Attorney, Wadee and Wadee Attorneys as
specified in paragraph 2 above and who shall then within 5 days thereof,
pay the amount so received to the bank account operated by the Trusha
Chesney Naidoo Trust, for the sole benefit of Trusha .
10. The Defendant is directed to make payment of the taxed and/or agreed
costs within 180 (one hundred and eighty) days of agreement or taxation,
as applicable.
11. In the event that the Defendant fails to pay the full amount owing in
respect of the agreed and/or taxed costs specified in paragraph 2, 5, 8
and 10 above, then in that event, the Defendant shall be liable for interest
at the prevailing legal rate on the full amount owing or any part thereof, a
tempore mora from 15 (fifteen) days hereof to date of final payment.
LIVHUWANI VUMA
ACTING JUDGE OF THE HIGH COURT
SOUTH GAUTENG LOCAL DIVISION
APPEARANCES:
Counsel for the Plaintiff: Adv . D Goodenough
Email: dorisgoodenough@gmail.com
Email: joewadee@wadeeatt.co.za
Instructed by: Wadee and Wadee Atttorneys
Counsel for the Defendant: Adv T Ngomana
Email: tshepon1@raf.co.za
Instructed by: RAF State Attorney - Johannesburg
Date of Hearing: 29 & 30 October 2024
Date of Judgment: 3 February 2025