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:                              YES/NO
Of Interest to other Judges:   YES/NO
Circulate to Magistrates:        YES/NO	
						
							Case number: 2809/2014

In the matter between: 

THEMBIKHAYA NDLELA 					Plaintiff
and
ROAD ACCIDENT FUND					Defendant

HEARD ON:		09 MARCH 2022

JUDGMENT BY:		DANISO, J

DELIVERED ON:	18 MARCH 2022

[1]	In this matter the plaintiff claims general damages, loss of income, future medical and hospital expenses against the defendant for resulting from the injures the plaintiff sustained in a motor vehicle accident which took place on the 6 December 2010. 

[2]	The plaintiff was a passenger in a vehicle with registration numbers and letters [….] driven by Petrus Lefu Khaibe. The vehicle overturned as a result of a tyre burst.

[3]	It is common cause that as a result of the said accident, the plaintiff sustained a traumatic brain injury, fractures of the spine, wrist and fifth finger of the right hand. He also lost three front teeth.

[4]	The defendant has conceded the merits, 100% of the plaintiff’s proven or agreed damages. The damages for future medical expenses and loss of income have also been settled between the parties. 	

[5]	The only issue that I have to determine is the quantum pertaining to general damages. It was not in dispute that the plaintiff is entitled to general damages, the parties are however in disagreement with regard to the amount of damages to be awarded.

[6]	By agreement between the parties, the plaintiff handed in the expert reports by the medical examiner, Dr Khan, orthopaedic surgeon Dr Oelofse, neurosurgeon Dr van Aswegen, occupational therapist Ms Stroebel, neuropsychologist Ms R du Plessis, industrial psychologist Dr Landman and actuaries Munro Actuaries. No evidence was led by either party. 

[7]	At this stage, it is expected that the plaintiff will benefit from conservative treatments including physiotherapy, bio kinetics, pain and anti-inflammatory medication (NSAIDS) for the management of pain and discomfort. Psychological interventions are also recommended for depression.

[8]	At the time of the accident the plaintiff was 47 years old. The injuries have curtailed the enjoyment of his amenities, recreational activities, psycho-social aspects and some personal hygienic tasks, in that:

8.1.	He can no longer perform the hand crafting activities he enjoyed as a hobby prior to the accident.  The limited use of his right forearm, neck and back has adversely affected his personal hygiene as it is now difficult to use and extend the arm to bathe. 

8.2.	The plaintiff has also become an insomniac as he lies awake worrying about the future.

8.3.	The accident has also left him with a slight scar on the forearm. He also has a gap where his three teeth were knocked out which has affected his self-esteem. The experts reckon that the plaintiff will benefit from consulting a dentist in this regard.

[9]	It was argued on behalf of the plaintiff that the amount that would be just and equitable under these circumstances would be an amount of R950 000.00 (nine hundred and fifty thousand rand). 

[10]	On the other side, it was the defendant’s submission that the amount claimed by the plaintiff is excessive, having regard to the fact that the pain in the arm has since dissipated and his ailments can be resolved or managed with conservative treatments. As regards the alleged lost front teeth, there are no medical records from the dentist to confirm this injury. The amount that would be fair is a sum of not more R600 000.00. 
[11]	I was referred to various authorities by the parties in support of their respective arguments. I don’t deem it necessary to rehash the submissions made in that regard. Comparable previous awards do serve as a guide as two cases can never be the same each case must be treated on its own unique facts.
[12]	It was said in A A Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A) that the determination for the award for general damages has never been an easy task. There is neither a mathematical nor a scientific formula to compute the monetary value on pain and suffering, and loss of amenities of life. 
[13]	The court retains a wide discretion when it determines what to award as general damages. There is no hard and fast rule of general application requiring a court to consider past awards. 
 
[14]	Having regard to the facts of the matter it can be established that as a result of the injuries the plaintiff has been left with chronic headaches resulting from the head injury, there is a decreased hearing in the left ear and cognitive changes including impaired memory and executive functions. His use of the right arm has been limited in that he is unable to carry heavy objects, perform hygienic tasks or even partake in recreational activities requiring the use of the arm. The pain in the arm has subsided mainly because the plaintiff is no longer using the arm or hand regularly. He is no longer employed pursuant to the accident. The loss of teeth has had adverse effect on his self-esteem. He has also been rendered an insomniac.

[15]	It is in the light of these circumstances that I’m of the view that the amount suggested by the defendant will not be adequate to compensate the plaintiff for the injuries he suffered and that the amount that would fair and equitable under these circumstances is the amount of R950 000.00 (nine hundred and fifty thousand rand)

[16]		In the result I make the following order:

1.	The draft order annexed hereto as annexure “X” is made an order of court.

_____________
N.S. DANISO, J 

APPEARANCES: 	

Counsel on behalf of the plaintiff: 		Adv. PJJ Zietsman SC
Instructed by:					Honey Attorneys
						BLOEMFONTEIN

Counsel on behalf of the defendant:	Ms. C. Bornman
Instructed by:	Office of the State attorney
	BLOEMFONTEIN