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JUDGMENT – WRIGHT J
1. The appellant, Mr Mauelele was 42 years old when he was knocked over by a
car on 3 November 2018. He instituted action against the respondent Fund,
claiming damages under various heads. It was agreed that the Fund would be
liable for 80% of proven damages. The only claim not settled was that for general
damages. That issue went to trial, on a default judgment basis, the Fund having
been barred from pleading.
2. Joseph AJ awarded R500 000 as general damages. The award of R500 000
appears to be before the deduction of the 20% apportionment. Mr Mauelele now
appeals and with the leave of the court below.
3. At the trial, Mr Pilusa appeared for Mr Mauelele and Ms Ameersingh appeared
for the Fund. At the outset, Ms Ameersingh, duly authorised by the Fund
expressly tendered R500 000 in respect general damages. It is not clear from the
record whether the tender was pre or post apportionment. In the end, nothing
turns on this uncertainty.
4. There is no document on record which contains an express acceptance of liability
by the Fund for general damages but I take Ms Ameersingh’s offer as implied
acceptance by the Fund of liability for general damages.
5. The Fund has not opposed this appeal by filing heads of argument. At the
hearing, Ms M Mhlongo appeared for the Fund and said that the appeal is not
opposed. She expressly did not concede the appeal. She said that the matter
had not settled. We are thus not relieved of the duty to consider the appeal.
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6. The trial hearing was very short. No witnesses were called. A written application
by Mr Mauelele, under Rule 38(2) that “ the factual evidence of the plaintiff and
witnesses as well as the reports” of certain named medical experts be admitted
into evidence by way of affidavit was not expressly dealt with at the hearing, as
far as one can tell from the record, itself something which does not make for easy
reading.
7. Both counsel appear simply to have assumed that the judge should read the
hospital records and doctors’ reports, filed for Mr Mauelele, and make a decision.
Ms Ameersingh did however tell the judge that the Fund did not accept that Mr
Mauelele had suffered a head injury.
8. There is no affidavit on record by Mr Mauelele on any aspect of the case. Nor is
there any affidavit by any medical expert which turns a report into evidence.
9. In short, it would appear to have been common cause that the judge could look
at the hospital records and doctor’s reports for the purposes of assessing all
aspects of general damages except the head injury and its consequences.
10. It is not necessary to deal in great detail with every medical report. I shall set out
below the relevant facts as gleaned from the reports.
11. Mr Mauelele had no existing medical conditions before the accident.
12. There is on file a report by Dr Mosadi, a neurosurgeon. Mr Mauelele was
examined on 17 August 2021. Mr Mauelele had attended school until grade 10.
He was a contract worker. He was rendered unconscious in the accident. His
Glascow Coma scale was 11/15 on admission which improved to 13/15 and then
to 15/15. He was operated on both fractured legs and discharged after two
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months. He suffered a pneumocephalous head injury. Memory problems and
headaches started after the accident. During the consultation he spoke fluently.
He has a short limb antalgic gait. Dr Mosadi described the head injury as
moderate and the headaches as chronic. A 5-8% chance of later development of
epilepsy is noted. Acute pain was suffered for two weeks and chronic pain
thereafter to date of consultation.
13. Ms N Joy is a clinical psychologist. According to her report, she examined Mr
Mauelele on 28 July 2022. Ms Joy notes, in respect of Mr Mauelele, an inability
to walk properly, headaches, irritability, decline in sexual interest and poor sense
of smell. He spoke fluently during the interview and interacted well with Ms Joy.
There was no evidence of peculiar thought patterns and he was in touch with
reality.
14. There is a report on file by an orthopaedic surgeon, Dr Bila, who notes, from
hospital records, a head injury with scalp lacerations and bilateral “ tib-fib”
fractures. Dr Bila records a painful right leg and abnormal motion at the fracture
site. Mr Mauelele had an antalgic gait and used crutches. He had a vulgus
deformity of the left ankle. He had a septic wound over the right shin area. There
is a septic non-union of the right tibia and a malunion of the left tibia. He will need
surgical debridement of the left focus. Should the sepsis not heal, amputation
may follow. He has a 31% whole person impairment.
15. From the learned judge’s reasons in the application for leave to appeal it seems
that he found that the head injury had not been proven nor the alleged
consequences of the alleged head injury.
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16. I agree. There is no evidence, from any person under oath, that there was a head
injury nor that the consequences of the alleged head injury are as relied upon.
17. Ms Ameersingh had apparently consented to various hospital records and
experts’ reports being used by the trial judge, on issues other than those relating
to a head injury. She had expressly denied the alleged head injury.
18. In my view, the injuries and their consequences, apart from the head injury are
proven but the head injury and its consequences are not proven.
19. In my view, the award of R500 000, before the 20% apportionment is fair
compensation.
20. Regarding costs, the legal teams for both sides seem to have agreed that scale
B would be appropriate in respect of the order as a whole, for the settled items
and the general damages combined. Despite this apparent agreement, Joseph
AJ allowed costs on scale A.
21. The agreed amount, apart from general damages, was R532 466,40 pre-
apportionment. That is R425 973,12 after apportionment.
22. Mr Mauelele sought R900 000 for general damages. R500 000, pre-
apportionment was awarded. The total award was R865 973,12, that is net after
apportionment.
23. The learned judge expressly made the finding that general damages were
R500 000. That seems to be pre-apportionment. After apportionment, the amount
is R400 000. R425 973,12 plus R400 000 is R825 973,12. It would appear that
the learned judge over calculated the general damages after apportionment at
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APPEARANCES :
APPELLANT Adv LB Pilusa
Instructed by MB Mabunda Inc
Mr T Mafereka
tumi@mbmabunda.co.za
RESPONDENT Ms M Mhlongo
NkatekoM@raf.co.za
Instructed by State Attorney