G.S.M obo O.K v Road Accident Fund (2153/2017) [2025] ZAFSHC 29 (6 February 2025) (2025)

INTHE HIGH COURT OF SOUTH AFRICA

FREESTATE DIVISION, BLOEMFONTEIN

Reportable/ Not reportable

Caseno. 2153/2017

Inthe matter between:

Neutralcitation: 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 theparties’ representatives by email andreleased to SAFLII. Thedate and time for hand-down is deemed to be 10h00 on 06February 2025.

ORDER

1.The plaintiff is awarded general damages inthe sum of R800 000.00

2.All the remaining heads of damages shall be determined at a laterdate.

3.An appointment of curator ad litem to administer the affairson behalf of the minor child

4.The defendant is liable to pay the plaintiff’s taxed or agreedparty and party costswhich costs shall include all the reasonablequalifying fees for plaintiff’s experts of all medico-legalreports and plaintiff’sattorney’s attendance to allmedico-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 lateradjudication.

JUDGMENT

ManyeAJ

[1]The plaintiff in her representative capacity as the mother andnatural guardian of O[...] K[…]M[...] (hereinafter referredto as ‘the minor’), is suing the defendant forinjuries sustained following a motor vehicle accident that occurredon 7 September 2014.

[2]At the commencement of the trial, counsel for both parties informedthe court that merits weresettled as per the court order dated 27March 2018, wherein the defendant was found to be liable for 100% ofthe plaintiff’sproven or agreed damages.

[3]The only issue in this court is the adjudication of general damagesonly and all outstanding issueswere to be postponed to beadjudicated at a later date.

[4]The plaintiff moved for an application for an amendment of theparticulars of claim relating tothe quantum in respect of generaldamages to be amended from R650 000.00 to R900 000.00. The defendantelected not to oppose theapplication for the amendment and as suchthe application for amendment was granted.

[5]The parties by agreement further requested this Court to accept theexperts’ reports onlyin relation to general damages in termsof rule 38 on general damages and not any other issues. The followingreports were admittedin 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 RAF4 dated 05 July 2017; and

iv. Dr J Mbhele (ClinicalPsychologist) dated 20 June 2019.

[6]The parties further elected to close their respective cases inrespect general damages. The partiesagreed to file heads of argumentwith the defendant file its heads on 9 May 2024 and the plaintiff tofile on 9 July 2024.

[7]It is trite that the plaintiff bears the onus and the only evidencepresented in casu was that of the plaintiff’s experts.At the beginning of the trial, counsel for plaintiff submitted thatthe reports acceptedinto the record and specifically the facts,assumptions and opinions expressed by the experts as notice of whichwere furnished,in terms of rule 36(9)(b) of the Uniform Rulesof Court, be admitted into evidence in terms of rule 38(2) includingfactual findings, opinions, and collateralinformation obtained.Further, that the evidence of the aforesaid experts as contained intheir respective affidavits, be admittedas evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, asfar as this relates to general damages only.

[8]The plaintiff claims the following heads of damages:

i.Past medical and hospital expensesR 67 103.24

ii.Estimated future medical treatment in terms of Section17(4)(a)undertaking

iii.Estimated future loss of income R3 171 355.00

iv. General damagesR 900 000.00

TOTALR4 138 458.24

[9]As already indicated above the only issue to be determined by thisCourt is the amount of generaldamages. It is not in dispute that theplaintiff is entitled to general damages, however the parties are indisagreement with regardto the amount of damages to be awarded.

[10]Plaintiff’s counsel Mr Marx addressed the Court in thefollowing respects:

i.That the patient complained ofheadaches and had sustainedlacerations.

ii.That the patient complained of painin the upper leg, upper arm, andmultiple lacerations.

iii.That the X-rays were ordered for the patient andthe accident reportconfirmed right femur fracture and multiple pelvic fractures.

iv.That On the 8^th July 2014 the patient was transferred toMediclinic and was taken into the theatre on the same date. The legwas opened and insertedwith 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 thegeneral ward for a couple of weeks and eighteen (18) months after thesurgery theinserted 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] Onfurther diagnosis of seizures, Dr Oelofse also referred to theneurosurgeon’s expert opinion. Furthermore,it became clearthat the femur healed well within three weeks but the patient couldnot walk around without assistance for a periodof two months.

[13]The second operation was ordered to remove the instruments insertedand the healing of the wounds took twoweeks while the scarringmarks remained visible. The patient was left with a left leg havingshortened by 0.5 cm.

[14] DrHoffman (plastic surgeon) dealt with damages for disfigurement andscarring over the forehead of approximately7cm x 2cm andapproximately 4cm x 5cm over the left eyebrow. Over the occiput,scarring of 2cm x 5cm was evident and scarring of15cm x 5mm over theright femur. Lastly, approximately 2cm x 2cm scarring was evidentover the back left flank.

[15] DrK Mutyaba (Neurosurgeon) confirmed that the patient was 2 years oldat the time of the accident.

i.Based on the informationand the interaction he had with thepatient it was evident that the patient suffered a mild traumaticbrain injury (TBI) as a resultof the accident of 7 September 2014.

ii.The evidence for the conclusion thatthe patient suffered a traumaticbrain injury is founded on the results of looking at a mechanism ofthe injury and presentationwith a large frontal scalp lacerationthat required washout and suturing.

iii.Radiological investigations (CT scan) of the braindid not avail tohim. However, note must be taken that a normal brain scan does notrule out concussion. He further concluded thatthe patient’sage gave a much higher chance of a head injury compared to adults dueto the size of the head relative to thebody.

[16]The neuropsychologist, Dr Mbhele, assessed the patient and commentedthereon as follows:

i.The patient had normal upbringing and the family structurefacilitated four children’seducation. The patient’sbrother completed his matric and his father and mother had bothcompleted matric.

ii.The father furthered his studies in mechanical engineering as aprofessional mechanic.He further observed that the patient’spre-morbid functioning and family background suggests that his braindevelopment trajectorywas on the right course and showed no signs ofearly disturbances.

iii.The patient was diagnosed with mild neuro-cognitive disorder, due tothe mild TBI withbehavioural disturbances, as well as post-traumaticstress disorder (PTSD) and, most differential, attention deficithyper disorder(ADHD). Further ongoing evaluations were recommended.

[17]Mrs Gouws for the defendant addressed the court and indicated thatthe plaintiff’s claim rests on afracture of the femur, mildADHD and scarring. She also indicated that the orthopaedicsurgeon did not make any findingsrelated to that of a pelvicfracture. However, she conceded that the disfigurement had beendiagnosed, as well as the head injury.She recommended physiotherapyfor the near future and that some scarring may be improved byreconstructive surgery.

[18]She submitted that doctor Mbhele generally stated that it wasdifficult to examine the plaintiff as the childis a busy boy. Sheconcluded by submitting that in the assessment for general damagesfor femur, mild brain injury and scarring,compensation at R650000.00 was fair and reasonable in the circumstances of this case.Lastly, she concluded by stating that therest of the remainingissues ought to be decided at the trial on a later date.

[19]The plaintiff’s mother, Mrs S[…] M[...], testified thatshe is the biological mother of thechild. She had consulted with thelawyers for the protection and management of the monies that may beawarded to the plaintiffin general damages.

[20]She stated that she harbours concerns with the monies being paid intothe attorney’s trust accountas her experience is that themoney goes missing and ends up not working for the person it isintended for. She also submittedthat she and her husband areworking, as well as the patient’s brother, and as such are notin need of the amounts awardedin terms of the general damages forpatient, but that she would nevertheless want the money to bedeposited into her accounts.She admitted that she did not have anyexperience in managing a trust account.

[21]Mrs Gouws took issue with the proposition that the money to beawarded be paid into the mother’s account,and moved anapplication for a curator ad litem to be appointed on behalfof the minor who will advise how the money ought to be dealt with inthe most appropriate manner.

[22] Iwas referred to various comparable decisions for determination ofappropriate amounts to be awarded.Relying on the saidauthorities, the plaintiff contends that the amount for generaldamages to be set at R900 000.00 whereas thedefendant submits thatthe amount should be R650 000.00.

[23] Iam not persuaded by the plaintiff’s contention that an amountof R900 000.00 is consummate to thedamages sustained by thePlaintiff. The amount that I consider to be fair and equitable underthese circumstances is the amountof R800 000.00.

Order:

The following order ismade:

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 laterdate.

3.An appointment of curator ad litem to administer the affairson behalf of the minor child

4.The defendant is liable to pay the plaintiff’s taxed or agreedparty and party costswhich costs shall include all the reasonablequalifying fees for plaintiff’s experts of all medico-legalreports and plaintiff’sattorney’s attendance to allmedico-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 lateradjudication.

T.L. MANYE, AJ

Appearances:

FOR PLAINTIFF:

Adv D MARX

Instructed by:

VZLR ATTORNEYS

C/O Du PLOOY ATTORNEYS

49 PARFITT AVENUE/PARKWEST

BLOEMFONTEIN.

Email: corne@vzlr.co.za

FOR DEFENDANT:

J GOUWS

Instructed by:

STATE ATTORNEYS

11^TH FLOOR |FEDSURE BUILDING

49 CHARLOTTE MAXEKESTREET

C/O ROAD ACCIDENT FUND

62 ST ANDREW STREET

BLOEMFONTEIN.

Email:johandig@raf.co.za