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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

Case No.: 84827/2015

24/8/2018

 

In the matter between:

 

MM THINDA obo NJ                                                                                                   Plaintiff

 

and

 

ROAD ACCIDENT FUND                                                                                           Defendant

JUDGEMENT

MNGQIBISA-THUSI, J

[1]        The plaintiff has instituted a claim against the defendant, the Road Accident Fund ("RAF") for damages in her representative capacity as the natural mother and guardian, on behalf of her daughter, Nthabiseng. The claim arises from a collision which occurred on 28 January 2013 when a motor vehicle bearing registration number [….] collided with Nthabiseng who was a pedestrian along the Singonzo Street, Pelandaba, Bloemfontein.

[2]        In a settlement agreement which was made an order of court on 14 October 2016, the parties agreed, inter alia, on the following:

2.1       that the issue of liability and quantum be separated in terms of Uniform Rule 33(4);

2.2       that the RAF admits liability to compensate Nthabiseng for 100% of her proven or agreed damages;

2.3        that the RAF undertakes to provide Nthabiseng with an undertaking in terms of s 17 (4) (a) of the Road Accident Fund Act[1] ("the Act") for her future medical and related expenses; and

2.4        other ancillary relief.

 

[3]        At the hearing of this matter, the parties agreed that the issue of past and future loss of earnings be postponed to the settlements roll.

[4]        The only issue to be determined is the quantum for general damages.

[5]        The parties also agreed that no evidence would be led during the hearing and that the matter would be argued based on the expert reports admitted, in particular, the reports of the parties' respective orthopaedic surgeons. In their joint minute the orthopaedic surgeons[2] conclude that as a result of her injuries, Nthabiseng has sustained a long term impairment.

[6]        It is common cause that Nthabiseng sustained the following injuries as a result of the collision:

6.1     a severe head injury;

6.2     a fracture to the left femur; and

6.3     lacerations on the left side of her face, left buttock, right hand and right distal forearm.

 

[7]        Over and above Nthabiseng's injuries were exacerbated further when she suffered hypovolemic shock, respiratory distress and aspiration pneumonia. Nthabiseng is now a paraplegic, is spastic, is wheelchair bound and has contractures in both wrists.

[8]        Despite her severe injuries and for some unfathomable reasons the RAF initially rejected her claim for general damages and referred her to the Health Professions Council of South Africa ("the HPCSA") for assessment. The HPCSA's decision is that Nthabiseng's injuries qualified as serious under the Narrative test[3].

[9]        With regard to a suggested amount to be awarded for general damages, counsel for both parties relied on the same comparable previous cases. Counsel for the plaintiff suggested that in view of the severe injuries sustained by Nthabiseng, the court in determining the appropriate amount should consider an amount between R3, 000, 000.00 and R3, 500, 000.00. On behalf of the RAF counsel suggested an amount of R3, 100,000.00.

[10]      A brief synopsis of the comparable cases referred to by counsel follows. In S J Morake v RAF[4] the plaintiff, 64 years old at the time of the collision, was due to his injuries, rendered a quadriplegic, uses a wheelchair and is totally dependent on his family. The court awarded an amount of R2, 500,000.00 (2017 adjusted value being R2, 952,000.00) for general damages. In Bonesse v RAF[5] the plaintiff was 32 years old and was rendered a tetraplegic as a result of injuries sustained in a collision. He was awarded an amount of R2, 500, 000.00 (current adjusted value being R3,113, 000.00). In A Vorster (obo RA Smith) v RAF[6] plaintiff who was 28 years old and is a paraplegic as a result of the injuries he sustained in a collision which occurred on 6 July 2015. She was awarded an amount of R3, 000,000.00.

[11]       In Sandler v Wholesale Suppliers Ltd[7] the court stated that:

"The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending on the Judge's view of what is fair in all the circumstances of the case."

 

[12]      Furthermore, in Protea Assurance Company Limited v Lamb[8] the court held that:

"...the trial court or the Court of Appeal, as the case may be, may pay regard to comparable cases. It should be emphasised, however, that this process of comparison 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 so 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 an award which is not substantially out of general accord with previous awards in broadly similar cases, regard being 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 nave been either more serious or less than those in the case under consideration".

 

[13]       At the time of the collision, Nthabiseng was 13 years old and is currently almost 18 years of age. When taken to the Pelonomi Hospital by ambulance from the scene of the collision, Nthabiseng's Glasgow Coma Score was recorded as 15/15 on admission to hospital. She has developed epilepsy and is under 24 hour care, relying on her mother for her basic daily living activities. According to the report of Dr J H Kruger (neurosurgeon), Nthabiseng's life expectancy has been reduced by 10 years.

[14]       The collision in which Nthabiseng was involved in was life changing. Having considered the authorities I was referred to by Counsel, I am of the view that only the Bonesse matter (supra) is the closest comparable case. I am of the view that injures sustained and the sequelae by Nthabiseng are more serious than the situations of the plaintiff in the Bonesse and Vorster matters (supra ). Taking into account Nthabiseng's serious injuries which have resulted Nthabiseng permanently losing of physical mobility, being rendered mentally retarded and untrainable. Although prior to the collision Nthabiseng had an active social interaction with her peers and her friends frequently visited her, after the collision some of her friends visited but within a short space of time the visits petered out and currently she does not have any social interaction. She is now faced with a lonely life with her mother, the plaintiff being the only companion. I am of the view that Nthabiseng has suffered a significant loss of amenities of life and that an amount of R3, 300, 000.00 would be a fair and reasonable compensation for her claim for general damages.

[15]       The parties have agreed on a draft order pending the determination of the general damages to be awarded. Accordingly, an order incorporating the agreed upon draft order marked "X" is hereby made an order of court.

 

 

NP MNGQIBISA-THUSI

Judge of the High Court

 

 

Appearances

For the plaintiff: Adv. NJ Potgieter (instructed by Van Zyl, Le Roux Inc.)

For the RAF: Adv. L Botha SC (instructed by State Attorney)

“X”

88

 

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Case num: 84827/2015

 

23^rd August 2018

 

Before the Honourable Justice

 

MNGQIBISA-THUSI J

 

(IN COURT SC)

 

In the matter between:

 

ADV M VAN ROOYEN obo NJ THINDA                                                                 Plaintiff

 

and

 

ROAD ACCIDENT FUND                                                                                           Defendant

ORDER

Having read the documents filed on record and after hearing argument from Counsel for the parties, an order is hereby granted in the following terms:

1.            The Defendant is ordered to pay the Plaintiff the amount of R 3, 300, 300.00 (Three Million three hundred thousand Rand) "capital", for general damages.

2.            The aforementioned total sum, in paragraph 2 shall be payable by direct transfer into the trust account of VZLR INC., details of which are as follows:

ACCOUNT HOLDER:                 VZLR INC

BRANCH:                                      BUSINESS BANK HILLCREST

BRANCH CODE:                          632005

TYPE OF ACCOUNT:                  TRUST ACCOUNT

ACCOUNT NUMBER:                 [….]

 

3.            The remaining issues of Quantum, in specific loss of earnings, is hereby separated and postponed sine dies.

4.            In the event of default on the above payment, interest shall accrue on such outstanding amount at 10.00% per annum, (at the mora rate of 3.5% above the repo rate on the date on this order, as per the Prescribed Rate of Interest Act, 55 of 1975, as amended) calculated from due date, as per the Road Accident Fund Act, until the date of payment.

5.            The Defendant shall make payment of the Plaintiff's taxed or agreed party and party costs on the High Court scale, including the costs of the instructing and correspondent attorney ,which costs shall include but not be limited to the following:

5.1.         All reserved cost to be unreserved;

5.2.         The fees of Senior Junior counsel, inclusive of but not limited to counsel's full, reasonable day fee and fees for preparation;

5.3.        The fees of the Curatrix ad Litem on the High Court Scale, inclusive of, but not limited to her reasonable, taxable, and cost for preparation, attending consultations, and preparation of her report etc.;

5.4.          The reasonable taxable costs of obtaining all medico legal/expert, RAF 4 Serious Injury Assessment, actuarial reports and any other report of an expert nature from the Plaintiff's experts, of whom notice had been given, including but not limited to the reports which were furnished to the Defendant and/or its experts;

5.5.        The reasonable preparation, qualification, reservation and attendance fees, if any, of all the Plaintiff's experts of whose reports had been furnished to the Defendant and / or its experts ;

5.6.         The reasonable taxable accommodation and transportation costs (including toll and e-toll charges) incurred on behalf of or by the patient (including one person having to accompany him) in attending medico legal consultations with all experts, consultations with the legal representatives and the Court proceedings;

5.7.        The reasonable cost for an interpreter's attendance at court on the trial dates and at the medico legal appointments for translation of information;

5.8.        The reasonable costs of a consultation between counsel, the patient's attorneys and the Curatrix ad Litem, the patient's family and the experts, in preparation of the hearing and discussion of settlement and the terms of this order;

5.9.         The above-mentioned payment with regard to costs shall be subject to the following conditions

5.9.1.      The Plaintiff shall, in the event that costs are not agreed, serve the notice of taxation on the Defendant's attorney of record; and

5.9.2.      The Plaintiff shall allow the Defendant 14 (fourteen) calendar days to make payment of the taxed costs;

5.10.      In the event of default on the above payment, interest shall accrue on such outstanding amount at the mora rate of 3.5% above the repo rate on the date of taxation / settlement of the bill of cost, as per the Prescribed Rate of Interest Act, 55 of 1975, as amended, per annum, calculated from due date until the date of payment;

5.11.       The above costs will also be paid into the aforementioned trust account.

 

6.               6.1     By agreement between the parties, the award to the Plaintiff, after attorney-own client fee and disbursements and interest on unpaid disbursements are deducted, shall be protected, by means of it being invested in an interest-bearing account with a registered banking institution in terms of section 78 of the Attorneys Act, 53 of 1979, by the Attorneys of Record, to the benefit of the Plaintiff.

6.2      The Plaintiff's Attorneys of record are authorised and ordered to make any reasonable payments to satisfy any of the Plaintiff's needs that may arise and that are required in order to satisfy any reasonable need for treatment, care, aid or equipment that may arise in the interim, up and till there is clarity in respect of the protections of the funds of the Plaintiff.

7.            A contingency fee agreement exists between the Plaintiff and the Plaintiff's attorneys, which complies with the terms set out in the Contingency Fee Act.

 

 

BY ORDER

THE REGISTRAR

 

 

For the Plaintiff:                   VZLR Inc - 012 435 9444;

 

For the Defendant:              MATHIPANE TSEBANE Att- 012 326 8711;

Adv L Botha 083 640 7372

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