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. 2153/2017
In the matter between :
G. S. M[…] obo O . K.
and
ROAD ACCIDENT FUND
Plaintiff
Defendant
Neutral citation: G S M[...] obo O K M[...] v Road Accident Fund (2153/2017)
Coram: Manye AJ
Heard: 3 May 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The date and time for hand- down is deemed to be 10h00 on 06 February
2025.
ORDER
1. The plaintiff is awarded general damages in the sum of R800 000.00
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2. All the remaining heads of damages shall be determined at a later date.
3. An appointment of curator ad litem to administer the affairs on behalf of the
minor child
4. The defendant is liable to pay the plaintiff’s taxed or agreed party and party
costs which costs shall include all the reasonable qualifying fees for plaintiff’s experts of all medico- legal reports and plaintiff’s attorney’s attendance to all medico- legal
assessments after the previous court order of 2018.
5. Costs of counsel up to 12 April 2024.
6. Costs of counsel as from 12 April 2024 to stand over for later adjudication.
JUDGMENT
Manye AJ
[1] The plaintiff in her representative capacity as the mother and natural guardian
of O[...] K[…] M[...] (hereinafter referred to as ‘ the minor ’), is suing the defendant for
injuries sustained following a motor vehicle accident that occurred on 7 September
2014.
[2] At the commencement of the trial , counsel for both parties informed the court
that merits were settl ed as per the court order dated 27 March 2018, wherein the
defendant was found to be liable for 100% of the p laintiff’s proven or agreed damages.
[3] The onl y issue in this court is the adjudication of general damages only and all
outstanding issues were to be postponed to be adjudicated at a later date.
[4] The plaintiff moved for an application for an amendment of the particulars of
claim relating to the quantum in respect of general dam ages to be amended from R650
000.00 to R900 000.00. The defendant elected not to oppose the a pplication for the
amendment and as such the application for amendment was granted.
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[5] The parties by agreement further requested th is Court to accept the experts’
reports only in relation to general damages in terms of r ule 38 on general damages
and not any other issues. The following reports were admitted in evidence:
i. Dr L F Oelofse (Orthopaedic Surgeon) dated 7 June 2017;
ii. Dr D K Mutyaba (Neurosurgeon) dated 20 June 2019;
iii. Dr D F Hoffman (Plastic Surgeon) dated 5 July 2017 and RAF 4 dated 05 July
2017; and
iv. Dr J Mbhele (Clinical Psychologist) dated 20 June 2019.
[6] The parties further elected to close their respective cases in respect general
damages. The parties agreed to file heads of argument with the defendant file its heads on 9 May 2024 and the plaintiff to file on 9 July 2024.
[7] It is trite that the p laintiff bears the onus and the only evidence presented in
casu was that of the plaintiff’s experts. A t the beginning of the trial, counsel for plaintiff
submitted that the reports accepted into the record and specifically the facts ,
assumptions and opinions expressed by the experts as notice of which were furnished ,
in terms of r ule 36(9) (b) of the Uniform Rules of Court, be admitted into evidence in
terms of r ule 38( 2) including factual findings, opinions, and collateral information
obtained. Further , that the evidence of the aforesaid experts as contained in their
respective affidavits, be admitted as evidence in terms of s 3(1)(c) of the Law of
Evidence Amendment Act 45 of 1988, as far as this relates to general damages only.
[8] The plaintiff claims the following heads of damages:
i. Past m edical and hospital expenses R 67 103.24
ii. Estimated future medical treatment in terms of Section17(4)(a) undertaking
iii. Estim ated future loss of income R3 171 355.00
iv. General damages R 900 000.00
TOTAL R4 138 458.24
[9] As already indicated above the only issue to be determined by this Court is the
amount of general damages. It is not in dispute that the plaintiff is entitled to general
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damages, however the parties are in disagreement with regard to the amount of
damages to be awarded.
[10] Plaintiff’s counsel Mr Marx addressed the Court in the following respects:
i. That the patient complained of headaches and had sustained
lacerations.
ii. That the patient complained of pain in the upper leg, upper arm, and
multiple lacerations.
iii. That the X -rays were ordered for the patient and the accident report
confirmed right femur fracture and multiple pelvic fractures.
iv. That On the 8th July 201 4 the patient was transf erred to Mediclinic and
was taken into the theatre on the same date. The leg was opened and inserted
with plates and screws to attach the femur. The patient was admitted to the ICU for a week.
v. On the 14
th July 2014 the patient was transferred to the general ward for
a couple of weeks and eighteen (18) months after the surgery the inserted
hardware was removed.
[11] Dr Oelofse identified the following current symptoms:
i. Persistent headaches at least three (3) times per week;
ii. Occasional nose bleeds.
iii. The patient attempts to hide scarring on the forehead when in public.
iv. The patient experiences no episodes of seizures.
[12] On further diagnosis of seizures , Dr Oelofse also referred to the neurosurgeon’s
expert opinion. Further more , it became clear that the femur healed well wit hin three
weeks but the patient could not walk around without assistance for a period of two months.
[13] The second operation was ordered to remove the instruments inserted and the
healing of t he wounds took two weeks while the scarring marks rem ained visible. The
patient was left with a left leg having shortened by 0.5 cm.
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[14] Dr Hoffman (p lastic surgeon) dealt with damages for disfigurement and scarring
over the fore head of approximately 7cm x 2cm and approximately 4cm x 5cm over the
left eyebrow. Over the occiput , scarring of 2cm x 5cm was evident and scarring of
15cm x 5mm over the right femur . Lastly, approximately 2cm x 2cm sc arring was
evident over the back left flank .
[15] Dr K Mutyaba (Neurosurgeon) confirmed that the patient was 2 years old at the
time of the accident.
i. Based on the information and the interaction he had with the patient it
was evident that the patient suffered a mild traumatic brain injury (TBI) as a result of the accident of 7 September 2014.
ii. The evidence for the conclusion that the patient suffered a traumatic
brain injury is founded on the result s of looking at a mechanism of the injury
and presentation with a large frontal scalp laceration that required washout and
suturing.
iii. Radiological investigations (CT scan) of t he brain did not avail to him.
However, note must be taken that a normal brain scan does not rule out
concussion. He further concluded that the patient’s age gave a much higher
chance of a head injury compared to adults due to the size of the head relative to the body.
[16] The neuropsychologist, Dr Mbhele, assessed the patient and commented
thereon as follows:
i. The patient had normal upbringing and the family structure facilitated
four children’s education. The patient’s brother completed his matric and his father and mother had both completed matric.
ii. The father furthered his studies in mechanical engineeri ng as a
professional mechanic. He further observed that the patient’s pre- morbid
functioning and family background suggests that his brain development
trajectory was on the right course and showed no signs of early disturbances.
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iii. The patient was diagnosed with mild neuro- cognitive disorder, due to the
mild TBI with behavioural disturbances , as well as post -traumatic stress
disorder (PTSD) and, most differential , attention deficit hyper disorder (ADHD) .
Further ongoing evaluations were recommended.
[17] Mrs Gouws for the d efendant addressed the court and indicated that the
plaintiff’s claim rests on a fracture of the femur, mild ADHD and scarring. She also
indicated that the orthopaedic surgeon d id not make any findings related to that of a
pelvic fracture. However, s he con ceded that the disfigurement had been diagnosed,
as well as the head injury. She recommended physiotherapy for the near future and
that some scarring may be improved by reconstructive surgery.
[18] She submitted that doctor Mbhele generally stated that i t was difficult to
examine the plainti ff as the child is a busy boy. She concluded by submitting that in
the assessment for general damages for femur, mild brain injury and scarring,
compensation at R650 000.00 was fair and reasonable in the circumstances of this
case. Lastly , she concluded by stating that the rest of the remaining issues ought to
be decided at the trial on a later date.
[19] The plain tiff’s mother, Mrs S […] M[...], testified that she is the biological mother
of the child. She had consulted with the lawyers for the protection and management
of the monies that may be awarded to the plaintiff in general damages. [20] She stated that she harbours concerns with the monies being paid into the
attorney’s trust account as her e xperience is that the money goes missing and end s
up not working for the person it is intended for. She also submitted t hat she and her
husband are working, as well as the patient’s brother , and as such are not in need of
the amounts awarded in terms of the general damages for patient , but that she would
nevertheless want the money to be deposited into her accounts. She admitted that
she did not have any experience in managing a trust account.
[21] Mrs Gouws took issue with the proposition that the money to be awarded be
paid into the mother’s account , and moved an application for a curator ad litem to be
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appointed on behalf of the minor who will advise how the money ought to be dealt with
in the most appropriate manner .
[22] I was referred to various comparable decisions for determination of appropriate
amounts to be awarded. Relyi ng on the said authorities , the plaintiff contends that the
amount for general damages to be set at R900 000.00 whereas the defendant submits
that the amount should be R650 000.00. [23] I am not persuaded by the plaintiff’s contention that an amount of R900 000.00
is consummate to the damages sustained by the Plaintiff. The amount that I consider
to be fair and equitable under these circumstances is the amount of R800 000.00.
Order:
The following order is made:
1. The plaintiff is awarded general damages in the sum of R800 000.00
2. All the remaining heads of damages shall be determined at a later date.
3. An appointment of curator ad litem to administer the affairs on behalf of the
minor child
4. The defendant is liable to pay the plaintiff’s taxed or agreed party and party
costs which costs shall include all the reasonable qualifying fees for plaintiff’s experts
of all medico- legal reports and plaintiff’s attorney’s attendance to all medico- legal
assessments after the previous court order of 2018.
5. Costs of counsel up to 12 April 2024.
6. Costs of counsel as from 12 April 2024 to stand over for later adjudication.
T.L. MAN YE, AJ
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Appearances:
FOR PLAINTIFF:
Adv D MARX
Instructed by:
VZLR ATTORNEYS
C/O Du PLOOY ATTORNEYS 49 PARFITT AVENUE/PARK WEST BLOEMFONTEIN. Email: corne@vzlr.co.za
FOR DEFENDANT:
J GOUWS
Instructed by:
STATE ATTORNEYS
11TH FLOOR | FEDSURE BUILDING
49 CHARLOTTE MAXEKE STREET C/O ROAD ACCIDENT FUND
62 ST ANDREW STREET
BLOEMFONTEIN.
Email: johandig@raf.co.za