South Africa: North Gauteng High Court, Pretoria

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[2020] ZAGPPHC 279
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Grimbeek N.O v Road Accident Fund (7145/2016) [2020] ZAGPPHC 279 (26 June 2020)
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
CASE NO: 7145/2016
In the matter between:
GRIMBEEK AA N.O. IN THE ESTATE OF LEPEANE TD Plaintiff
and
ROAD ACCIDENT FUND Defendant
BHOOLA A J:
Introduction
[1] This matter, a claim against the defendant for loss of support brought by the executor of the deceased's estate, for damages arising out of a motor vehicle collision, was enrolled for trial on 22 June 2020. The defendant had terminated the mandate of the defendant’s legal team on 1 June 2020. A settlement offer was made and the plaintiff rejected the offer. This court postponed the matter to 23 June 2020, in order for the defendant to instruct new legal representatives or run trial in person. The matter proceeded on 24 and 25 June 2020 by way of Zoom videoconference. Mr Marx appeared for the plaintiff and argued that the matter should proceed in default of the RAF’s appearance as the matter has been set down for some time and the defendant was informed the previous week of the plaintiff’s intention to continue with the trial were the matter not settled. Numerous emails sent to the claims handler had simply been met with no response. Mr Marx, urged me to adopt the approach taken by Neurkircher J (in a matter in which he had appeared) handed down on 15 June 2020 in this Division, K D Dichabe obo GN v RAF (CASE NO: 18770/16) in which the court expounded on the denial of access to justice that can ensue in such circumstances and permitted the matter to continue notwithstanding the default in appearance of the defendant.
[2] As was held by Neukircher J supra [at para 7] it was extremely perturbing that the defendant's actions appeared to be stymying a plaintiff’s access to court and access to justice. The court held : "From the past weeks I have been allocated to the civil trial roll, where matters are not settled by the RAF itself, a stalemate ensues: the RAF either has no legal representative available to conduct the trial on its behalf or it refuses to make any appearance on the day of trial - the result is that plaintiffs are left with a Hobson’s choice: to postpone the trial for an indeterminate and sometimes lengthy period of time, or to attempt to proceed with a judgment by default and run the risk that the RAF takes steps to have that judgment set aside." The court also made reference to Mhlongo v Road Accident Fund (unreported) case no 21383/20 of Rogers J of 8 June 2020.
[3] I am also mindful of the fact that the defendant did not seek a postponement – they simply failed to appear or make representations at all. Moreover, they made no effort to respond to any of the numerous emails sent by the plaintiff's attorneys in an effort to garner their co-operation with progressing the matter to trial or settlement. Such attempts were met with complete silence. In these circumstances I ordered that the matter should proceeded in the defendant's absence.
Background facts:
[4] The plaintiff, Thakane Daine Lepheane, an adult female residing at Pahameng, Bloemfontein brought a claim in her personal capacity. The plaintiff died on 2 May 2020, and Alford Adolph Grimbeek was appointed as executor of the estate on 19 June 2020. The plaintiff was duly substituted in a notice of substitution. The plaintiff was 61 years old and a pedestrian on 30 May 2015 at approximately 16h45 and at George Lubbe Street, Bloemfontein, when a collision occurred with the insured motor vehicle. The details of the motor vehicle and driver are unknown.
[5] In terms of a court order dated 23 April 2018, the issue of merits was settled on the basis that the defendant is liable to pay 80% of the plaintiff's proven or agreed upon damages. In the court order the defendant was also ordered to furnish the plaintiff with an Undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of 1996, limited to 80%, for the costs of the future accommodation of the plaintiff in a hospital or nursing home or the treatment of or the rendering of a service or the supplying of goods (of a medical and non-medical nature) to the plaintiff arising out of injuries sustained by her in the motor vehicle collision.
Injuries and sequelae
[6] The plaintiff filed reports by three experts, and the defendant filed two reports. According to Dr. H Enslin, the plaintiff's orthopaedic surgeon, the plaintiff suffered the following injuries: fracture of the mid-shaft of the left tibia and fibula, contusion of her left knee, contusion of her left ankle, abrasions on her knees and a head injury. Dr. Mutyaba, the plaintiff's neurosurgeon, noted that she suffered mild traumatic brain injury, with GCS 14/15, right parietal scalp laceration and mid-shaft tibia-fibula fracture. Dr E Tromp, the neuropsychologist recorded that according to the RAF 1 Form, she sustained a large parietal haematoma, left tibia and fibula fracture, diffuse head injury, haematoma of right parietal area, left and right knee abrasions, left leg deformity and scarring on leg and head. According to the RAF 1 form she had to have an open reduction and internal fixation of the left tibia/fibula.
[7] In terms of her treatment, the hospital records indicate that the plaintiff lost consciousness upon impact and was taken the Pelonomi hospital by ambulance where she regained consciousness. She complained of left leg pain and a headache. The hospital notes state that she might have been intoxicated with alcohol. She was discharged on 10/06/2015 with a scheduled follow-up appointment. The notes show that she had a difficult time with mobilising, and therefore she needed prolonged post-operative physiotherapy. She is also noted to have suffered the following emotional and psychosocial changes: neurobehavioral problems which render her emotionally vulnerable, post accident anxiety, bed wetting, behavioural problems affecting interpersonal relationships, and self consciousness as result of scarring and poor self-esteem.
[8] The plaintiff complained of the following accident related symptoms: frontal headaches at least twice per week (for which she took analgesics), random bouts of dizziness, pain in her lower back and both legs, blurry eyesight, fatigue and lowered energy levels, low self-esteem, high levels of anxiety-related to travelling, a disrupted sleeping pattern, a decrease in her memory and concentration abilities, her appetite has decreased post-accident and she has developed a low self-image.
[9] The sequelae of her injuries were reportedly as follows: the pain in her lower back and both legs prevented her from lifting and carrying heavy objects and her ability to stand or walk for prolonged periods of time has been compromised. She was unable to attend to her household chores as well as she used to and she is no longer as active as she used to be. The plaintiff also complained that her memory and concentration has been affected in that she has become forgetful and that she struggles to focus for a prolonged period of time. She indicated that she often misplaces important items. She noted that she continues to experience a diminished capacity to concentrate and this, in turn, affects her day-to-day functioning. Plaintiff stated that she suffers from fatigue and lacks enough energy to participate in day-to-day activities post-accident. She stated that she feels physically and mentally drained regularly.
[10] Neuropsychological test results indicate that she had impaired verbal and abstract reasoning ability; impaired simple attention abilities; impaired working memory and complex attention; below average visual memory; impaired auditory narrative memory; inadequate visual spatial organisation and integration skills; rote verbal learning difficulties; slowed psychomotor speed abilities; impaired executive functioning abilities; poor problem solving and planning abilities. She had thus sustained deficits in all areas of cognitive functioning.
General damages
[11] The plaintiff was qualified for general damages by plaintiff’s medical experts in their RAF4 reports, and the defendant accepted the RAF4 reports. The defendant made an offer for the general damages, which the plaintiff rejected. Counsel for the plaintiff submitted that general damages in the amount of R 500 000 less 20% merits deduction thus R 400 000 is fair and reasonable.
[12] Counsel in written heads of argument cited the following case law:
Kaduku vs RAF (83408/2014) [2017] ZAGPPHC 432 (22 March 2017) (2017 - R 650 000. 2020 value R734 000). Kubushi J, in determining the claim for general damages, referred to the injuries suffered by the plaintiff, which included: a left tibia and fibula fracture and head injury with a laceration of the scalp. He was treated with 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 evidence indicated that he sustained a moderately severe diffuse brain Injury. The court referred to the neurosurgeon's opinion that the plaintiff had made a good recovery post the head injury, with no obvious residual neurocognitive problems and has no residual neurophysical deficits. In regard to pain and suffering the court had regard to ( at [17]) the fact that before the collision the plaintiff was physically fit and healthy and had no chronic medical problems or previous head injuries or limb fracture. However, post injury the plaintiff complained of recurrent left lower leg pain, exacerbated by prolonged standing, walking long distances, cold weather and prolonged weight bearing and strenuous exercise. He is not able to run due to his leg pain and struggles to perform his tiling work due to the pain. This reflects his loss of amenities of life. The court took into account the neurosurgeon's confirmation that the plaintiff suffered acute pain from the left tibia structure and head injury with multiple scalp lacerations and an abrasion on the forehead. He was managed conservatively for the head injury. He had an open reduction and internal fixation of the left tibia. He would have experienced pain for several weeks from the healing fracture. Furthermore, in regard to the report of the orthopaedic surgeon the court noted that the plaintiff had pain as a result of the fracture as well as surgery involved to stabilise the fracture. He was given analgesics to ease the pain and continues to suffer the inconvenience and discomfort of chronic pain from the injured areas. He has never been pain free since the collision. He will need to remove the tibial nail in the future and will, as a result, suffer more pain when the implants are removed ( at [19]). The plaintiff also had scars on the head and on the left knee.
The court held as follows :
"[27] In this instance, it is evident from the experts' reports that the plaintiff, due to the injuries sustained in the accident, is entitled to be compensated for general damages:
27.1 He suffered pain when the accident occurred. He suffered further pain occasioned by the treatment he received for the injuries and he continues to suffer the pain even long after the accident. The neurosurgeon refers to this pain as chronic. The experts say he will suffer more pain when the implants are removed.
27.2 He has also suffered loss of amenities of life. The experts are agreed that because of the injuries, the plaintiff has difficulty standing for a long time, walking long distances and can no longer run. He can no longer do any prolonged weight bearing and strenuous exercise and struggles to perform his tiling work due to the pain.
27.3 He is disfigured because of scarring to his head, knee, lower leg and ankle. He has abrasion scar on the left lumbar region and a bony deformity of the lower tibia.
[28] It is, thus, my view that in the circumstances of this case the plaintiff should be awarded an amount of R650 000 as just and equitable compensation for general damages."
M obo M v Road Accident Fund (4484/2016) [2018] ZAGPJHC 451 (18 June 2018). Mia AJ considered a claim for general damages in the amount of R 1 500 000.00 and determined that an amount of R 400 000 was fair and reasonable (2020 value R 429 000). The court referred to the fact that many cases cited by the plaintiff involved much younger plaintiffs whereas the plaintiff in M sustained a cut on her forehead which was sutured, as a result of which she has an ugly scar. The court held as follows:
"[22] Ms Hlabyage submitted that the plaintiff only qualified for compensation for the scar under general damages. She submitted further that the neurosurgeons did not indicate that she qualifies for general damages and thus the only damages applicable were the damages for the minor disfigurement of her face as a result of the scar which she submitted ought to be awarded in the amount of R 200 000.00 having regard to the case of Mohloboli v Ralethohlane and Another 654 QOD 1 FSHC where the plaintiff sustained a minor head injury and was awarded R145 000. She referred also to Macle v RAF 2015 7E4 QOD 1GNP where the plaintiff sustained a mild concussive injury and was awarded R 359 000.00. In Fawkes v Guardian Co. Ltd 1951 194 QOD 293 E the plaintiff suffered jaw and facial disfigurement and was awarded an amount of R 213 000.00. In Schmidt v Nel 1961 194 QOD 290 O the plaintiff with a permanent scar was awarded the sum of R 210 000.00 . Ms Hlabyage submitted that based on the above case law an amount of R 210 000 to R 213 000 was applicable for the scar and R 400 000 in total as a cumulative amount for general damages was appropriate. Thus the order in total ought to be R 400 000 plus R2 038 499 bringing the total award to R 2 438 499.
[23] Having regard to the case law, referred to by Mr Strydom the plaintiff’s scars will remain unless treated by a plastic surgeon. She suffers Post Traumatic Stress Disorder which is on-going and this impacts her quality of life. The cases referred to by the defendant are instructive herein. I have indicated that the injuries in Msimanga above appear to be more serious in nature than the present matter. I have taken into account the physical injury as well as loss of amenities of life as a result of depression and am satisfied that the amount of R 400 000 is a reasonable amount for general damages.”
-25
Yimba NP v RAF (44866/2017) [2019] ZAGPPHC 485 (19 September 2019).
In this matter Kubushi J awarded R 700 000 (2020 value R 713 000) to a plaintiff said to have sustained a mild to moderate diffuse traumatic brain injury (with skull fractures) and a fractured lumbar vertebra. The plaintiff's fourteen (14) month old son was killed in the same motor vehicle accident, she as a result suffered emotional issues like bereavement and grieve which caused her emotional shock and trauma. At [para 11] the court referred to cases cited by the plaintiff where sequelae of the injuries are said to be analogous to those of the plaintiff in this matter. These are as follows :
11.1 Tobias v Road Accident Fund: the plaintiff in that judgment, a fitter and turner, suffered moderate diffuse axonal brain injury as well as a fracture of the tibia, which resulted in the plaintiff suffering neurocognitive and neuropsychological deficits. Additionally, the plaintiff's employment became limited as a result of his injuries. The court awarded an amount of R 450 000 (Four Hundred and Fifty Thousand Rand), which amounts to a present-day award of R 722 000 (Seven Hundred and Twenty Two Thousand Rand).
11.2 Van der Mescht v Road Accident Fund: the plaintiff in that case, a female marketing executive suffered a moderate brain injury as well as a fracture of the pelvis and thoracic vertebrae. Her injuries healed welt but she suffered a period of post-accident amnesia as well as neurocognitive and neuropsychological issues. The plaintiff in that case was awarded R 400 000 (Four Hundred Thousand Rand) which amounts to R 642 000 (Six Hundred and Forty Two Thousand Rand), presently.
11.3 Madan NO v Road Accident Fund: the plaintiff suffered a mild brain injury as well as a fractured nasal bone, which resulted in the plaintiff suffering neurocognitive and neuropsychological deficits. The plaintiff was awarded R 350 000 (Three Hundred and Fifty Thousand Rand), which presently amounts to R 535 000 (Five Hundred and Thirty Five Thousand Rand).
11.4 Kritzinger and Kritzinger v Road Accident Fund: the plaintiff, a father of two girls who were tragically killed in a motor vehicle accident which caused him to suffer severe emotional shock and trauma as a result whereof he suffered from chronic bereavement reaction with protracted grief. He also suffered from chronic posttraumatic stress disorder and chronic major depressive disorder. He was awarded R 150 000 (One Hundred and Fifty Thousand Rand) in 2009, which amounts to present day value of R 251 000 (Two Hundred and Fifty One Thousand Rand). The court had regard to the following case law cited by the defendant in support of its submission that a fair and just amount to be awarded to the plaintiff should be an amount R 550 000 (Five Hundred and Fifty Thousand Rand).
The court held at [12] : The defendant also referred me to cases with sequelae of injuries that were said to be analogous to those of the plaintiff in this instance, namely:
12.1 Makupula v Road Accident Fund: the plaintiff, a five (5) year old boy with a mild to moderate disuse axonal concussive brain injury with neurocognitive deficits associated with attention deficits, hyperactivity, poor concentration, poor executive functioning and poor scholastic performance. The court awarded an amount of R300 000 (Three Hundred Thousand Rand), which amounts to the present-day value of R 482 000 (Four Hundred and Eighty Thousand Rand).
12.2 Vukeya v Road Accident Fund: the plaintiff, a forty three (43) year old female cleaner suffered mild to moderate front lobe brain injury as well as orthopaedic injuries such as whiplash injury of the neck, lower back injury, fracture of the second metacarpal bone on the left hand and soft tissue injury of the left leg She as a result suffered from chronic headaches and depression. The court awarded her R 330 000 (Three Hundred and Thirty Thousand Rand) which translates to present-day value of R 530 000 (Five Hundred and Thirty Thousand Rand)."
[14] It is trite that in determining what amount of compensation should be paid by the defendant to the plaintiff a court must have regard to previous awards for analogous injuries and sequelae and that a court has a wide discretion. Having regard to the authorities cited, particularly Kaduku and M supra, I am of the view that the amount of R400 000.00 is fair and reasonable compensation for the deceased platiniff's general damages, being R500 000.00 less a 20% merits deduction.
ORDER
[15] In the circumstances, I make the following order :
The draft order marked “X” is made an order of this court.
BHOOLA AJ
Date of hearing: 24 and 25 June 2020
Date of judgment: 26 June 2020