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15/03/2007 11:26 A______ ______________________________- HIGHCOURT______ PAGE 02/46
IN THE i-UGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
CASE NO: 2005/8572
'DEETE WHICHEVER IS NOT APPLIcABLE
(1) REPORTABLE f)e)v4In the matter between:
(Z OF INTEREST TO OTHER JUbES -*EB7NQ(3) REVISED.
/3 44a6&€'t4'MEGALANE, MQNAMETSI EL1AS
GRIFFIER VAN DIE HOOGPEREGSHOfIAFDELINO) I
andPRVAAT3AA
20Q7 -02- (15
JQHANNEU 2000 I
ROAD ACCIDENT FUNDDefendant
JUDGMENT
SALDULKE!1:
The plaintiff instituted an action against the defendant consequent upon
the plaintiffs minor son, Moshe Megalafle (Moshe), who was born on 13
January 1991, sustaining significant0 bodily injuries arising from a motor
vehicle collision which occurred on 6 September 2OO2
15/83/2887 11:26 83 A HIGHCOURT PAGE 83/45
2
(2] Moshewas a passenger in the moto! vehicle. At that stage he was 11
years of age. His mother died in the collision. Immediately after the collision
Moshe was admitted to the Surininghill HospitaL After his discharge there, he
was admitted to Clayton House1 a rehabilitation facility. During 2003 Moshe
was admitted to the Netcare Rehabilitation Hospital (Netcare). In 2004 he was
transferred to the Serenity Nursing Home wherehe is at present.
[3] The merits have been conceded by the defendant. I am required only to
adjudicate in respect of the quantum of damages.
[4] The parties have agreed on the following heads of damages:
4.1 Past hospital and medical expenses- R175 003, 07
4.2 Estimated future hospital, medical
and ancillary expenses-
In respect of this claim the defendant hastendered an undertaking in terms of
section 17(4) of thi Road Accident Fund Act 56of 1996.
[5] The issues that remain in dispute are loss of income earning potential and
general damages for pain, suffering, loss of amenities of life, disability,
disfigurement and loss of expectation of life.
(6] The heads of damages which remain for adjudication are:
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03
p.) 3
• 6.1 Loss of income earning potential - R2 297 974, 40
6.2 General damages for pain and suffering, loss of amenities of life,
disability, disfigurement and loss of expectation of life -
RI, 4 million
[7] As far as the claim for the loss of income earning potential is concerned
the defendant has conceded that Moshe has a residual life expectancyof an
additional 48, 7 years.
[S] It is common cause that Moshe sustained a severe head injury, including a
• left intradural haematoma, an acute subdural haemorrhage and a diffuse
axorial injury. The sequelae of these injuries are canvassed in more detail
later in this judgment.
(91 The plaintiff led the evidence of the following witnesses: Dr H J Edeling a
Neurosurgeon, Ms F Van Vuuren an Educational Psychologist, Dr C Schmidt
an Industrial Psychologist, Ms Do Beer a Physiotherapist, and Mr . DS
Ormond- Brown a Neuro-Psychologist.
[10] The defendant led the evidence of Professor VU Fritz, a Neurologist.
[11] There is no reason to doubt the honesty or accuracy of'any of the
plaintiffs witnesses. In my view all of them were credible, plausible and
15/03/2007 11:26 03 AHIGHCOURT PAGE 05/46
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1
objective I turn to deal with the material aspectsof their testimony which are
relevant to the heads of damages that are in dispute.
WITNESSE
Mf Van Vuuren EdUcational Psychologist (Exhibit A 34-
[12) Ms Van Vuuren an educational psychologist evaluated Moshe in regard
to his pre- and postaccideflt potential on 24 June 2005.
[13] She testified that prior to the coflision Moshe had been attending the
Nobel Primary' School at Modderfonteifl. Moshe's parents had wanted him to
have a better education than he would have received in a township school,
with the emphasis particularly on language skills, the gaining of fluency and
the use of the English language. His 'mother had been a. qualified teacher at a
high school. Moshe had received certificates for Athletics in 1999, for
Nurneracy in 2000, for 100% Attendance in 2001, and a certificate for
achievement in Soccer in 2002, all from the Nobel Primary School. In 2002 he
received an A class certificate for Art and an A symbol for item 118, a lively
composition, from the Kempton Park Eistedford Society.
[14] Moshe's school reports reflected an overall improvement in his marks
from the middle of crade 4 until the middle of Grade 5, just prior to the
collision. He was performing above the class averagein the middle of
Grade 5.
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03
5.
[15] Ms Van Vuuren recounted the details of her interview with Moshe. On
first seeing her, Moshe threw his arms into the air in an uncontrolled fashion
and,let out a series of screeches which continued intermittently throughoutthe
interview. His father was present during the interview.. When he was given
simple picture books to read with a lithe bit of text, he showed overt signs of
excitement accompanied by screeching. He seemed to be quite pleased to
interact with her and responded to questions with yes or no answersbut could
not initiate a conversation. He indicated that he enjoyed television but not
radio or music. Prompted by his father he was able to name 'Popeye" as a
favourite television programme. She observed that he had a fond relationship
with the interpreter from the attorney's office.
[16] When she engaged him in conversation he responded in both English
and Tswana but his pronuncIation was not clear. He was unable to put words
together to make a sentence and was not able to say a single word without
compulsivelY repeating it. He had difficulties in expressing words. He was
eager at first to try the tasks during the interview but when he felt that they
were too difficult for him he gave up and refused further effort. He was easily
distracted and lost focus on the tasks.
[171 During the interview, when the resident cat appeared she testified that
Moshe became very quiet. The restlessness stopped. He sat very still. When
she asked him if he liked the cat he indicated no. When sheasked him if he
was afraid of the cat he did not even attempt to answer. He did not recover
from this mood change and he refused to say goodbye to her. She gained the
15/03/2007 11:26 03 AHIGHCOURT PAGE 07/46
6
strong impression that Moshe was not afraid of the cat but was sulking
because her attention had been taken away from him.
[18] From this she deduced that Moshe was obviously very aware of his
• surroundings and was responsive within limits. Because he was severely
handicapped, she conducted tests on him which were not age appropriate
tests but tests for children up to the age of 8, The tests indicated that he had a
word finding difficulty1 with severe deficits in visual discrimination.
(19] Moshe rapidly lost interest during the tasks and refused to co-operate.
Moshe's expressive language was poor but his receptive language seemed
rather better. He seemed to understand the instructions and where he had to
give either yes or no answers he responded appropriately when he was
interested in replying, which was not at all the time. She also tested his
performance skills and found that he had some cognitive understanding but
this was undermined by his inability to inhibit his impulses. He was able to
answer very simple practical questions at about the level of a child aged 6 or
7 years who had normal intelligence:.
[20] Moshe did not have much capacity to tolerate frustration and had a short
concentratIon span and problems with memory. Ms Van Vuuren concluded
that all of this would affect his capacity to hold onto and learn from
experience. His physical difficulties also added to his frustration.
15/83/2007 11:26 @3 A_____ PAGE @8/46_____ HIGHCOURT
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.7
[21] With regard to' the possible insight that he may have in regard to his
condition she stated that he may well be experiencing some level of emotional
pain even though he may not have profound insIght into what has happened
to him.
[221 Ms Van Vuuren stated that it appeared' from his school, reports that
Moshe was at least an average pupil in the first two terms of 2002. With the
exception of Mathematics1 his English and AfrikaaflS marks were above the
class average. He had an average intellectual endowment. Moths's parents
had placed a great deal of emphasis on Mosh&S education hence their choice
of the Nobel Primary School.
[231 In Ms Van Vuurefl'S opinionMoshe would have been able to achieve a
Grade 12 certificate and given the greater opportunities available these days
for tertiary education, Moshe, may well have been able to go onto further
education. From his school reports, it appeared that he may well have been
able to manage at a Technikon or at a University-
[24] Under cross examination she confirmed that he was incontinent, unable
to walk, and unable to sit without a restraining band. She stated that he may
well be experiencing some levelof emotional pain of which she was certain.
The reason why she did not express it in her report as a certainty was
because she did not know the level of insight that he had but was sure that he
was experiencing 'emotional pain.
15/@3/2@07 11:26 @3_________- AHIGHOOURT PAGE @9/46
8
[25) She stated that there were two ways in which she was able to get some
Insight into the emotional aspects of Moshe. The one was through close
observation which was one of her roles, not as an educational psychologist
but as a child psychotherpist or an adolescent psychotherapist which she
was trained to do. The second way was through the use of projection. She
explained that projection is a non-verbal communication that takes place
between people.
[26] In this regard she stated that when she had finished evaluating Moshe,
she was so overwhelmed by emotion "that wasnot mine", that she vomited for
half an hour. She stated that this was a common reaction to extreme trauma
on the part of a therapist and was a way of getting rid of the feelings that
'have been put into you". She stated that "they are not my feelings any more
than they are now". But what she felt whilst testifying in court was rage. She
stated that she had experienced a physical response to the time that she had
spent with Moshe and from this shededuced that Moshe was unable to find a
way to express what he felt. She stated that vomiting tends to indicate pain.
(27] She stated that Moshe's screeching could be excitement. Moshe's father
was uncertain whether Moshe was feeling happy or sad when he screeched.
She stated that at one stage earlier on during the interview with Moshe and
whilst his father was present she was aware of a pervasive sense of. pain but
she was not absolutely certain where it came from. But she was sure that
Moshe was experiencing some level of emotional palm
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.9
[281 She testified that there were great opportunities for tertiary education in
South Africa in the last decade and the opening of opportunities for previously
disadvantaged groups. She stated that as far as Mosh&s family history was
concerned, post- accident , Moshe's father, was unemployed, at the. time of•
her assessment of Mache. Pre —. accident, Moshe's father had passed
standard 9 and then worked for a Bus company and later as a radio operator.
[291 She was unable to state what courses Moshe could have followed in a
Technikonot University.beCaUS.e he had been rather young atthe time of the
accident. There ,was also, the other possibility that children followed in the
footsteps of their parents. This meant in the footsteps of the parent that was
the most qualified at the time. In Moshe's case it meant his mother.
[30] Under re-examination she explained that she had become upset and had
felt rage because of the lack of adequate rehabilitation that Moshe had had in
the .interventng years which had led to the deterioration in his condition.
During the short intervention that she had with him, Moshe had moved from
screechingto language. Even though he was not receptive to learning, he had
responded to stimulation. He was responsive to books during the interview but
sank into a state of apathy as soon as there was no stimulation
Dr. H.J.EdeUnci (Exhibit A 1-14)-
[31] Dr Edeling, a neuro —surgeon performed a medico-legal evaluation of
Moshe and gave evidence of, inter alia the nature and extent of the
15/@3/2007 11:26 @3 A HIGHCOURT PAGE 11/46
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10
neurological injuries sustained by Moshe. He testified that Moshe had
suffered head injury'. It included a brain injury with diffuse and focal
brain damage in the form of a subdural haematorna. Moshe was severely and
neurotogically dIsabled asa result of the head injury.
[32] There was no significant medical history and particularly no neurological
pathological condition prior to the collision. Moshes father and the caregiver
provided him with the information regarding Moshe's current status. Moshe
had remained totally dependent on care since the accident. Re had a major
communication impediment. On examining Moshe he noted that he was
deformed by spasticity of all four limbs and had paralysis of his right upper'
limb. He was able to understand and obey simple commandsbut his ability to
carry out simple instructions was hampered by his' spastlcity. Moshe sat
slumped and strapped into his wheelchair. He was able to walk the distance
of 6metres with the firm support provided by the caregiver. He communicated
by Way of facial gestures, flailing movements of his left arm and loud moaning
sounds or screams. Although Moshe's father and caregiver could recognise a
poorly articulated word, his vocalisation remained unintelligibleto Dr Edeting.
Moshe had some receptive language function but his expressive language
function was limited to poorly intelligible words and gestures.
[33] Under cross examination Dr Edeling stated that it was not possible to
measure àr to get any form of quantitative assessment of physical pain orto
be sure to what extent Moshe experienced pain because of the lack of
communication. However he stated that it was possible to get an impression if
15/@3/2@@7 11:25 @3 A HIGHCOURT PAGE 12/45•
03
11
• there' was pain or not. He stated that a person who was in pain was miserable
all the time he was experiencing pain. Moshe appeared to be quite animated
• ' and happy at times during the assessment and he' did not gain the impression
that he was in pain.
'[341 He also did nt gain the impression of any particularsadness or any
particular happiness in Moshe. There 'was no history of epilepsy in Moshe
since the accident. He was unable to 'assess whether Moshe had regressed
cognitively because the major problem in assessing this was Moshe's
communication and spasticity difficulties. Physiotherapy which he had been
receiving twice a day had been reduced to twice a week and this had led to
his physical regression.
[35] During these proceedings Edeling was recalled to testify in regard to an
inspection in loco that took place of Moshe at the Serenity Nursing Home on
16 June 2006. Observations at the inspection in Loco were recorded in Exhibit
ft Present at this meeting were the defendant's experts, Prof Fritz, and Dr
Botha and the legal representatives of both the parties and Dr Edeling.
[36] Dr Edeling testified that Moshe arrived in the company of Ms De Beerthe
physiotherapist. He observed that Moshe squealed in what appeared to him to
be delight as soon as he saw them. His gait was spastic with scissoring but
his progress was prompt and deliberate showing an improved functional
status. In their presence, Moshe performed physical exercises with Ms De
Beer. 'He spoke in Afrikaans saying the words "en links en regs en links en
15/83/2887 11:25 83 AHIGHCOURT PAGE 13/45
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12
regs" rhythmically whilst doing the exercises. He also started counting at one
stage from 1 to 10 correctly and intelligibly. When a packet of chips was
* produced by the defendant's expert, Prof Fritz, Moshe squealed in delight. He
• stated that it was quite clear that Moshe experienced emotion during this
meeting. He observed Moshe's apparent episode of delight firstly when he
saw the people and secondly when the packet of chips was produced. At
other stages during the inspection, Moshe seemed content not particularly
• demonstrating any positive or negative emotion. At some stages 'in the
• interaction with the exercises there was some resistance or conflict between
the physiotherapist and Moshe when he demonstrated what appeared to look
like irritation but then he obeyed Ms De Beer's instructions and continued. Dr
• Edeling gained the impression that Moshe had enjoyed the whole exercise.
Ms Do Beer.
•[37] Ms De Beer, a physiotherapist testified that she had been treating Moshe
for two years since he had been admitted to Serenity Nursing Hospital. He
• received physiotherapy twice a week and speech therapyonce a week. She
stated that he was restrained in his wheelchair during the day with a
restraining band because of his lack of inhibition and impulse control. He was
able to move from a sitting to a standing position as wall as walk with
assistance. The distance that they walked together with her holding him inside
the nursing home was probably 200 to 300 metres. Moshe was incontinent
and wore a nappy.
15/03/2007 11:26 03 A HIGHCOURT PAGE 14/46
03
13
• [38] Under cross- examination she stated that Moshes walking had improved
definitely but his speech and the function of his right arm had deteriorated
• since she had first assessed him.
Mr. D. S Ormond — Brown (Exhibit C)
139] Mr Ormond- Brown testified that he is a neuro —' psychologist and is
• practising at the Netcare. Moshe had been an inpatient there. Moshe had
been in an appalling conditiOn when he was admitted. For some months he
lay in bed receiving basic nursing care. He spent the first two to three months'
screaming uncontrollably. it became necessary to move him into one of the
side wards because of the extreme disruption that he created in the hospital.
He was effectively out of control. He was emotionally distraught and was' '
• completely disorientated. Basic communication was extremely limited.
[401 Initially he stated that Moshe could not use both his hands functionally
because the fine sensory motor co-ordination in. hands 'was severely
impaired. However there was an overall significant and fundamental shift in
his functioning ,when, rehabilitation began 'from all different therapeutic
disciplines. With treatment and 'the passage of time he was able to sit
reasonably erect .Whilst his speech was still significantly impaired, he was
able to communicate reasonably effectively .He understood things that were
told to him .There was a substantial 'improvement in both his mental and
physical condition during his stay at the Netcare. He was able to write at least
20 words with his right hand and when Moshe left Netcare in 2004, Moshe
15/@3/2@@7 11:26 @3 A HIGHCOURT PAGE 15/46
14
was able to operate the mouse of the cámputer and read words from a
computer.S
Mr Conrad Schmidt (Exhibit A 644
[41] Mr Schmidt an industrial psychologist assessed Moshe to determine
what his possible achievements could have been had it not been for the.
accident and compiled a report. He considered that in view of Ms Van
Vuuren's opinion that Moshe was a child of at least average intellectual
endowment who may have managed to reach Technikon or University level,
• the likelihood of him achieving of this level , appeared to be realistic when
considering the greater educational opportun!ties that currently exist, the likely
influence of his mother on his education as well as the premise that children
from previously disadvantaged groups in the South African context were likely
to exceed the educational and occupational attainment of their parents.
[421 He stated that two scenarios were considered to have been' possible,
mainly progression to an educational qualification, the equivalent of, a
Technical college level and progression to a qualification at a Technikon or
University level. He stated that there were systems in place that allowed every
job to be placed on a common scale. One of the most common systems was
the Patterson Grading Scale. This scale involved several levels which were
indicated alphabetically 'and "within each of the categories there were sub
divisions such as Al, A2, A3, Bi, 132 etc .A salary was attached at every' level.
The category A was the lowest level of job in the open market. A general
15/83/2087 11:26 83 AHIGHCO_____ ______ _________________ URT PAGE 16/46
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15
• laboUrer would be at the Al Patterson level. With a Technical college level of
education, an artisan would be at the C2 Patterson level.
• ' [43] In MrSchmidt's opinion, having regard to the opinion of Ms Van Vuuren
the most likely scenario for Moshe would be the second scenario in that
Moshe would have progressed to a qualification at, a University! Technikon
level. He stated that after a period of four years of studies he would. have
obtained the equivalent of a B- Degree. He would then enter the labour
market at the B4/Cl Patterson level (e.g. technician, programmer) and then
progress to a C41 Dl Patterson level '(systems analyst/technologist) at
intervals of 3 to 4 years between' these levels. It is expected that he would
have been able to work until the retirement age of 65.
[44] He stated factors such as the influence of his mother, the greater
opportunities for young people with that level of education to' progress in their
careers, and a growing economy would all play a role in Moshe exceeding the
educational level of his parents. He stated that there were various fields
available to Moshe. 0
[45] Under,cross-examination he stated' that Mdshe's mother was a teacher
and would have had a teaching diploma or some tertiary education. The father
had obtained, grade 11 and had worked as a truck and a store-room assistant.
At the time of Moshe's assessment, his father was unemployed. He stated
that even if Moshe's parents were not able to afford a tertiary education the
15/@3/2@@7 11:26 @3 AHIGHCOURT PAGE 17/46
16
National Student Assistant Loan facility was available at Universities and
Technikons. He assumed that the means would have been fOund for Moshe
to obtain his edUcation. He stated that there were great opportunities and
substantial assistance available and he saw no. obstacle for Moshe to reach
Tertiary education. He stated that it was reasonable to conclude that the
educational level of children would exceed that of their parents and
experience suggested that there were people working at top levels in
organisations who came from very humble backgrounds
[46] He conceded that because of the soclo- economic circumstances in
which Moshe grew up one could not only look at his intellectual capacity but
also at his background circumstances. But powerful factors such as his
mother's influence, the educational opportunities and Moshe's intellectual
potential favoured the second scenario as the most probable one forMoshe.
He stated that the salary ranges for positions A 1 top 1 Patterson ranges was
obtained from P E Corporate Services Survey and was annexed to his report.
However he stated that when he testified he relied on Deloitte & Touche's
most updated survey which was essentially the same as the PE Corporate
Services survey.
The report of Mr Holland, the Plaintiffs Actuary (Exhibit A 75-771
[47] It was agreed between the parties that the report of Mr Rolland be
handed in without calling him as a witness for the plaintiff. The actuarial
15/83/2887 11:26 83 AHIGHCOURT PAGE 18/46
•,
03
17
assumptions that 'he used for his calculations were not in dispute but the
factual bases on which he made the calculations were. According to Mr
Rolland's calculations on the assumption that Moshe's expectation of life is
48.7 years at the present time the value of his loss of income amounted to
O
R2 872 468, 00.' No allowance was made for contingencies. If a 20%
deduction forcoritingertcy was made the loss would total R2 297 974, 40.
• Thatconcluded the evidence for the Plaintiff
IbDifendant 's Case
• Prof V U Frit (Exhibit 19- 3,
[48] Fritz testified that she was a neurologist who assessed Moshe on 13 April
2006 at the Serenity Nursing Home. When Moshe saw her he screamed in a
high pitched sound. During the interview he communicated with her on
occasions and was able to tell her that he was 14 years old. He also informed
•
,her that his father's name.was Pappa He was unable to say more than one or
two words and was unable to formulate a full sentence. He understood siniple
•
commands. He was wheelchair bound and had a restrainer around him on a
permanent basis. He was extremely excited and restless during the interview
He recognised his father and there seemed to be a great deal of affection
between, the Iwo of them. His father tId her that he visited him during the
weekends. The father had a calming effect on him. He was extremely
excitable and waved his hands around and was very keen to get to his father
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during the inteMev'. His responses were primitive to commands and he spent
a lot of time screaming. As soon as he was stimulated in any way he would
start to scream and shout and wave his left hand.
[491 Professor Fritz testified that the 'nurse and Mosh&s father who were
present during the interview stated that they were not aware that he suffered
from any headaches or any type of pain.
[50] She testified that during' the inspection in 10cc at the Serenity Nursing
Home, Moshe certainly recOgnised the fact that there were people in the
room and had begun to squeal. She could not say whether it was in
recägnitiofl that they were in the room or whether he was attempting to greet
them or that he was just squealing. He was piaced on an exercise platform
and followed the instructions of the physiotherapist. During the routine he
chante,d in Afrikaans and counted correctly up to a count of 10.,
[SI] Professor Fritz became emotionally upset whist testifying about her
observations of Moshe during the inspection in loco, She described it as a
tragic display, like watching someone in a zoo.
[52] When asked to describe the level of Moshe's awareness she stated that
his reactions were that of a child between the age of 6 months and 1 year.
She did not believe that he had a range of emotions much greater than what
one would find in that age group.
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19
(531 Under cross examination it was put to her that Moshe had been able to
use themouse on the computer and read words from a computer at Netcare.
To this she replled that the child she saw at the inspection in loco could not
read or do any calculations. She reiterated that Moshe had the awareness of
a child between 6 months and a year. She had not mentioned this in her
report because her purpose of assessing Moshe was to evaluate longevity.
She stated that Moshe was severely mentally retarded and profoundly
disabled. He was effectively immobite bUt became mobile with a skilful
•
therapist.
[541 There are two issues before the court; the loss of income earning
• potential and general damages.
[55] 1 turn to consider these in the light of the evidence presented.
Loss of Income earning potential
[56] Ms Van Vuuren testified that Moshe was a child with at feast an average
intellectual endowment. His school marks prior to the collision showed an
improvement and he was performing above the class average. I-us mother
was a high school teacher and both parents had placed a high value on
education and had chosen to send him to Noble Primary school. Hisschool
reports clearly indIcated that he was thriving there. His grades were above
average. He progressed there and obtained certificates in Numeracy, Art,
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03
20
Athletics and Soccer. She concluded that Moshe would have been able to
obtain a Grade 12 certificate. Taking into account the greater opportunities
• available he may well have gone on to further education and reached
Technikon or University leveL
[571 Mr Schmidt considered that iii view of Ms Van Vuuçens opinion, it
appeared to be realistic that Moshe may have managed to reach Technikon
• or University Ieyei , where he would have obtained the equivalent of a B
degree ,taking into consideration the greater educational opportunities that
• currently exist, the likely influence of his mother on his education and the
premise that children from previously disadvantaged groups in the South
• African context were likely to exceed the educational and occupational
• attainment of their parents.
[58) According to the defendant Mr Schmidt 'a evidence regarding the
obtainment of Dl Patterson levels without any tertiary qualification is based
on literature that was not identified norhanded in as an exhibit and should be
disreg&ded. The defendant has caused an actuary to calculate Moshe's loss
of earnings on the basis that he would have on the probabilities obtained a
tertiary education equivalent to a technical college level .The defendant states
that on Mr Schmidt's evidence this would have started Moshe on a Patterson
Level of A3 with a progression to a Patterson 02 level. This placed him in
scenario I as described by Mr Schmidt. On this basis, with a life expectancy
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21.
of 63.7 years his •loss:of earnings and earning capacityhad been calculated
totalling RI 977 568, 00 after a 20% deduction for contingencies.
[59] The difference in the figures for the loss of income between the plaintiff
and the defendant is R220 406, 40. in my view the difference in monetary
terms in respect of whether Moshewill progress to a
university level or at a
technical collegelevel does not appearto be startling.
[60] In my view, the testimonyof Ms Van Vuuren and Mr Schmidt is
compelling. Both Ms Van Vuuren and Mr Schmidt expressed their considered
views regardingMoshe's intellectual potential from the information available to
them i.e. school reports,his socio economic background and the opportunities
now available to previously disadvantaged groupsin this country. 1 can find
.4 no reason to reject their conclusions, that the most likelyscenario for Moshe
would be a qualification at a University level! TechnikonleveL No evidence to
the contrary has been presented.
[61] Taking into accountthat Moshe had an average intellectual ability the
probabilities in my view exist that hewould have obtained a tertiary education,
equivalent to a University/Technikonlevel, in these circumstances, in my
view, the most probable scenariois the second
scenario and is in the
circumstances themost sound basis to calculate Moshe's loss of earnings.
[62]According to the calculations of Mr Rolland's the value of the loss
amounts to R2, 872,468. After a 20% contingency deduction
has been made
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03
22
the loss totals R2, 297974, 40. There appears to be no dispute between the
parties in regard to the contingency deduction to be made in respect of the
Moshe's loss of earnings. Both the parties have allowed a 20% contingency
• deduction to their respective figures and in my view this is fair and proper.
I turn to consider the claim for general damages
GENERAL DAMAGES
[63] The plaintiff has claimed R1,4 million for general damages, pain and
suffering, loss of amenities of life, disability disfigurement and for the loss of•
expectation of life, a separate amount in the amount of R300 000,00. The
plaintiff has also conceded that the amount of R300 000,00 should now fall
away because of 'the concessiOn that has been made by the defendant that•
Moshe has a residual life expectancy of an additiopal 48,7 years.
[64] It is common cause that the head injury had a devastating effect on
Moshe. He has:
64.1 cognitive impairments characterised by poor verbal and visual memory,
poor short-term memory so that he is unable to learn new material and a short
concentration span requiring constant redirection because Moshe is highly
distractible;
RI PAGE 24/4615/03/2007 11:26 03 A HIGHCOU
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• 23
64.2 impaired executive function.characteriSed by frontal lobe disinhibition
causing inappropriate behaviour, poor planning, poor monitoring, and a lack
of abstract reasoning,
64.3 speech problems characterised by dysarthria and retrievaldifficulty;
•
64.4 spastic bilateral hemiparesis with severe flexion contractureS and
• increased tone of his right upper limb particularly at the right elbow, wrist and
distal joint from the fingers of the right hand and severe flexion contractUreS Of
• the lower limbs particularlY the hips bilaterallY and the knee and ankle joints
• on the right side being worse than the left.
[651 As a result ofhis severe spasticity, Moshe is unable to plan co-ordinate
and execute skilled movements with accuracy, .has problems with gross motor
skills, has fine motor, co-ordination problems and is incontinent of bowel and
• bladder- ln addition to the cognitive,rieuro-physiCal difficulties that he suffers
from, he has the frustration of not being able to ambulate or be independent to
• any degree.
[661 Moshe is totally dependant on care since the accident. He has a major
communication impediment and is unable to communicate intelligibly. At times
he understands and obeys simple commands. He is unable to express his
needs or problems. Both Ms Van Vuuren and Professor Fritz became
emotional when reviewing Moshe'scondltjOfl.MV Ormond -Brown described
his appalling condition when he was admitted to Netcare. His condition may
15/03/2007 11:26 A HIGHCOURT PAGE 25/46
03
24
have improved on a superficial level buthis screeching, and his squealing, are
a reminder that his suffering continues. He remains incontinent, wears a
nappy and is restrained in a wheelchair. Although he is able to walk between
6metreS to 200metres, with strong support and a skilful therapist, he has
severe spasticity. The brain injury and its sequelae are destructive of Moshe's
life.
•' [671 The major dispute between the parties is whether Moshe has insight into
his predicament. The defendant contends that Moshe isa reasonably happy
and healthy child with no insight into his predicament. The defendant states
that the plaintiff's experts did not testify to any pain or suffering being
experienced by Moshe.
[68] In this regard the defendant states that Ms Van Vuuren testified that
Moshe may well be experiencing some level of emotional pain even though
he may not have profound insight into what has happened to'him.
(69] The plaintiff's counsel Mr Weasels has argued that Moshe is aware of'
and has some insight into his condition albeit to a limited extent
[70] 'At this stage 1 find it necessary to refer to Exhibit H, which was a recordal
by Dr. Edeling of the observations duilng an inspection in loco of Moshe
which was attended by both the plaintiff's and defendant's experts as recent
as the 16 June 2006. It appears that'when Moshe saw the observers in the
room at the Serenity Nursing Home, he squealed in what appeared 'to Dr.
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25
Edeling to be delight. He obeyed the instructions of the physiotherapist during.
the exercises and spoke to her in Afrikaans rhythmically saying 'en links en
regs" At one stagehe started to count but was told to stop He appeared to
• understand . and obeyed. When he did count it was from one to ten in
Afrikaans ôorrectly. He appeared to enjoy the exercise. Although his speech
was dysarthic and dysphonic , it was intelligible. When the packet of chips
was produced by the defendant's expert Professor Fritz, he squealed in
• delight as soon as he saw it. He sat contentedly chewing and swallowing the
chips until his interest began to diminish.
(71] He appeared to be pleased to see that he had visitors and delighted
• when the packet of chips was produced, in my view indicating in all probability
that he must have retained some memory of the pleasure of eating a packet
• of chips. His reaction was immediate. The defendant's contention that he
appears reasonably happy does not necessarily mean that he has no insight
into his condition.
[72] In my view he is not profoundly mentally disabled. Moshe is not in a
vegetative state. At.Netcare he was able to use the computer and write up to
• 20 words and read from a computer. During the assessment by the respective
experts, he was able to express his likes and his dislikes.
• [73j Ms Van Vuuren also testified that he was quite pleased to interact with
her during her evaluation. He responded to questions with yes or no answers.
He Indicated that he enjoyed television and prompted by his father stated that
15/@3/20@7 11:26 @3 AHIGHCOURI
PAGE 27/4503
26
he liked "Popeye'. He could speak some English and Tswana. When he was
given books to read he showed overt signs of excitement accompanied by
screeching. After the test session the resident cat appeared and Moshe then
became very quiet and indicated that he did not like the cat. It was assumed
from hiè behaviour by Ms Van Vuuren that he did not like the cat because he
felt that the cat drew away some of the attention away from him. During the
interview Ms Van Vuuren testified that she became aware of extreme
emotional pain and it seemed to her that Moshe may very well be
•
0
experiencing some level of emotional pain even though he may not have•
profound insight into what has happened to him.
[74] Dr Edeling was of opinion that Moshe showed emotional perception of
pleasure and irritation in his reaction to the people and exercises during the
inspection in loco He enjoyed his exercises with De Beer.
[75] In my view the probability therefore exists that Moshe has some insight
into his condition and retains some cognitive understanding about his
surroundings. In this regard the evidence of the defendant's expert is
instructive. It was Professor Fritz who testified that Moshe told her that he was
14 years old and called his father Pappa. He must have retained some
memory and insight as to how old he was at the present moment He was
born on the 16 January 1991 and the accident occurred on the 6 September
2002, when he was 11 years old. Professor Fritz's evidence that he had an
awareness of a child of between 6 months and lyear must in the light of this
5/83/2@@7 11:26 AHIGHCOURT
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27
testimony be rejected. Moshe was able to count in her presence correctly and
expressed his delight when the packet of chips was produced.
• [76] All these observation in my view of Moshe clearly demonstrate that
• Moshe is aware of his surroundings and has an insight into his condition In a
limited way. Although it is not known whether he is experiencing any physical
•
pain, in my view one cannot rule out this probability. Dr Edeling testified that
Moshe cannot communicate effectively nor can he express his needs and this
increases his suffering tremendously. He screeches and squeals. He has
been profoundly affected by the severity of the brain injury. In addition he
suffers the frustration of not being ambulant.
[77] In my view it appears that from the experts' observations of Moshe during
the inspection and during their respective interviews with him, Moshe
appeared to feel a whole range of emotions viz: happiness, frustration,
irritation and sulking.,
•(78] It is apparent from his reaction during the interviews and his interaction
with people that he must retain some memory, insight and understanding of
what he has lost. He does have some perception of what is occurring around
him .He recognises his father and the interpreter from the attorney's office.
His certificates in Art and Soccer are a testimony to his past pleasures and
achievements.
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03
28
• (79] I have been referred to certain comparable authorities by both counsel
for the plaintiff and the defendant.
•[80] The plaintiff has referred me to the following cases and 'I turn now to
consider the awards made in these cases. The Quantum Yearbook 2006 by
Robert Koch has been referred to by both parties for updated figures in
respect of awards that have been made in the past.
• [81] Mr Wessels for the plaintiff has referred the court to the case of Delport
NO v RAF at' page A4-1 in Corbetf & Honey Vol (v), The Quantum of
damages which he stated was the most appropriate case in this matter. The
amount of RI 250 000, 00 was awarded for general damages in 2003. On
• appeal this amount remained unchanged. Updated this award amounts to
Ri 418 0001 00.
[82].ln the Delport case (supra) the plaintiff had a severe brain stem damage
leaving the patient who was a 36 year old woman without the use of any limbs
except a very limited use of the lft arm and hand and with complete inability
to speak or to move she retained insight into her tragic situation as well as
sharpness of mind and sensory function so 'that she still fully experienced
chronic pain and other symptoms such as headaches, pain in the hip,
stomach cramps1' bladder discomfort, and spastic convulsions. She also
15/03/2007 11:25 AHIGHCOURT PAGE 30/46
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29
continued to suffer from severe depressions frustration, tearfulness and a
totally dysfunctional body.
(83] She had a life expectancy of 22 years during which time she, would be
totally dependent on others with no hope of improvement. Hartzenberg J in
awarding RI ,25 million for general damages in 2003 ,referred in particular
to the case of Marine and Trade insurance Company Limited v Katz NO
•
1979(4) SA 961 (A) "waarin n vasstelling vir algemane skade gemaak is van
•
P90, 000 wat orrigereken na hedendeagse weardes ge!ykstaande is aan RI
• 45Z000.Na Sg&ya v RAP Corbett and Honey, Vol 5 ,A21 tot A2- 10 waarin
n vastelling van P800,000 gemaak is wat omgere ken gelyk.staande is aan
R955, 000........."
[84] The amount awarded in the Katz matter (supra) updatedis equivalent to
• Ri 610000, 00.
• [85] In the Sgatya case (supra) the plaintiff suffered a fracture/dislocation of
the cervical spine at level C5 resulting in paralysis from the shoulders
downwards leaving the plaintiff a permanent tetraplegic. He had a loss of
bladder and bowel function. He also suffered from depression. He was
awarded the amount of R800 000 for general damages in 2001. This amount
updated Is equivalent to RI 05 9000.
[86] In Ndaba v RAf quoted at page A3-l in The Quantum of Damages
Corbett & Honey Vol (v) the plaintiff was rendered a paraplegic in a motor
- 15/@3/2@07 11:26
•
4 0
@3 AHIGHCOURT
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30
collision. He was permanently confined to a wheelchair and had all the
sequelae of a paraplegia. He was awarded the amount of R600 000 in2002.
This amount updated is equivalent to R727 000. 4
[871 Mr Wessels has argued that Moshe must be regarded as suffering the
in2bility to move similar to that of a quadriplegic but the difference was, that
the quadriplegic still had normal brain function and could at least have the
pleasures and amenities of life although he was unable to move on his own.
PAGE 31/46
[88] Mr Wessels has also referred me to the unreported judgements of
Masipa J and Claasens J.
[89] In Webb Nathan S A NO v RAF (unreported judgment of Masipa J
Case no 03/13786, dated the 14 June 2.006) the amount of R500 000 was
awarded in respect of general damages for a minor child who suffered a
• severe head injury as well as multiple skull and facial fractures. She had
ongoing and disabling neurological impairments which included
neurophysical, neuropsychological and neuropsychiatric disorders. She also
suffered double vision, balance and visuo-spatial difficulties and a risk of post-
traumatic epilepsy as a result of the collision. Nevertheless she was able to
use her exercise bicycle for about 10 minutes, watched television and played
computer games. She suffered with depression and headaches. She wore a
leg brace to support her whilst walking.
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31
[90] In Mnguni v RAE (unreported judgmentof Cleassen J Case no 810/2005
dated the IJune 2006) the plaintiff was awarded the amount of R700 000 for
general damages. The plaintiff suffered a severe brain injury and his right
lower leg was amputated .1-fe experienced headaches1 pain in the neck,
shoulder, knee and ankle. He was ambulant with one crutch. Although he
suffered memory, concentration and attention difficulties he returned to his pre
accident employer within.9 weeks following the accident.
[91] According to Mr Du Plessis, counsel for the defendant, none of the
matters 'referred to y the plaintiff are of any•assistanôe. The facts of these,
matters differ materially from the facts presently before the court and therefore
cannot be used 'as a guideline for the determination of general damages.
[92] The defendant further contends that in all those matters the respective
plaintiffs had very real insights into their present situations as opposed to their
situations priQr to their respective collisions, experienced considerable pain
and suffering on a daily basis and furthermore experiencedemotional trauma.
None of these faQtors are present' in Moshe's case.
[93] The defendant contends that in the light of the injuries sustained by
Moshe and the seque!ae thereof, an award of R300 000, 00 for' general
damages is appropriate. This award the defendant contends will also be in
line with the unreported decisions of Mnguni v RAF(supra) and Webb V RAP
(supra) referred to by the plaintiff. According to the defendant the injuries and
the seque!ae in both those matters were of a far serious nature than the
15/@3/2@@7 11:26 @3 HIGHCOURT PAGE 33/46
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32
injuries sustained by Moshe, and both the plaintiffs in those matters had real
insight into their respective predicaments.
[94] According to the defendant the only case comparable with the present
matter is Bobape .v Presiden.t Insurance Company Limited 1990 quoted at A4-
43, The Quantum of Damages Corbett and Honey (iv) where an amount of
R70 000,00 Was awarded for general damages in 1990. Updated, this would
presently amountto R246 000, 00.
[95] The plaintiffs counselMr Weasels argued that the award in the
Bobape matter was conservative and that it could not be used as a guide. In
support of this criticism , Mr Wessels referred the court to RAF V Marunga
2003 (5) SA 164 (SCA),where the court considered an amount of R175 000
as an appropriate award for a plaintiffwho had sustained a fracture of the left
femur together with a soft tissue injury in the chest area and bruises on the
forehead, left arm and left knee. Updated this amount was equivalent to R232
000. According to Mr Weasels there was a R14 000 difference between what
the updated value of the award in the Bobape matter was to what was
awarded in the Maruaga case. The amount of R300 000 for general damages
as suggested by the defendant could not b considered as an appropriate
amount for Moshe who had.suffered far more serious injuries than the plaintiff
in the Marunga case.
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V.
33
(961 The defendant states that this criticism is without merit as the Appellate
Division consistently looks at cases with similar facts to determine the basis of
an award for general damages.
(97] I turn to consider the Bobape case in the light of the defendant's
contentions. In Bobapa (supra) the court was of the view:
"But I do not intend to adopt the functional or subjective apprOach tothe assessment of general damages. But such awareness is one of
• the factors to be taken into account in such assessment. I do not think• that Lawrence should be deprived of the heavy damages to which his•
condition undoubtedly entities him and his father and his guardian indue course will know how to use the damages / pro po.se to award himto make him ascomfortable as he possibly can be in the circumstances
• of ti/s condition. There is no real guide to me for the amount thatshould be awarded. In the case of Marine and Trade Insurance
• Company Ltd v Katz NO 1979 SA 962 the trial court had awarded• an amount of R90 000,00 to a young woman who was rendered totally
paralysed from her neck down by injuries but she would remain fullyaware of the dreadful condition in which she was. (think that the latterfactor must !rievitablyadd to the otherwise heavy damages that shouldbe awarded in cases such as this. Having regard therefore toLawrence's apparent lack of appreciation of his condition / considerthat at this time an amount of R70 000, 00 would be an appropriateaward for general damages."
[98] This judgment of Bobape was handed down by Levy J on 10 December
1990 sixteen years ago and some eleven years after the Katz case. (supra)
The minor child Lawrence in the Bobape case suffered a severe braininjury
resulting in severe neurological deficits which left him with severe impairment
of intellectual capacity with marked impairment of communication. He
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03
34
remaIned Unconscious for a long time and on regaining consciousness it was
found that he was hemiplegic on the left side with left facial paralysis as well
as aphasis. He suffered a severe permanent physical and mental disability
manifested in his present condition which was as follows; He was unable to
stand nd sat huddled up in a bundle in a wheelchair. Both upper and lower
limbs were spastic resulting in uncoordinated uncontrolled and weak
movements particularly noticeable on the left side where Lawrence had very
little functional or active movement. His balance was precarious1 and he was
incontinent, having neither bladder nor bowel movement. He had a severe
speech problem talking in a monotone slowly and with poor articulation. He
was mentally severely impaired grimacingand giggling uncontrollably.
t991 During the entire examination he never spoke to the neurologist1 Dr Du
plessis. In the neurologist's opinion the very severe and irreparable brain
damage suffered by Lawrence left him both intellectually and neurophysically
severely impaired. The court came to the conclusion having seen the child
throughout the whole of the first day of the trial ,and it was the court's own
observation , and found it was supported by the observations of the medical
experts that the child had probably not "got any full realisation of his
condition". The court stated that such awareness was one ofthe factors to be
taken into accountin an assessment of the general damages to be awarded.
[1001 The court further held that there was no real guide for the amount that
should be awarded. The court however did refer to the Katz case (supra)
where the. amount of R 90 000 had been awarded to the plaintiff who had
15/@3/2@@7 11:26 @3 A HIGHCOURT PAGE 36/46
35
become totally paralysed but whohad remained fully aware of her dreadful
•condition. The court held that this latter factor "must inevitably add. to the
•
otherwise heavy damages that shouldbe awarded in cases such as this,
Having regard therefore to Lawrence's apparent lack of appreciation of his
condition I consider that at this time an amount of R70 '000 would be an
appropriate award for general damages."
[101] It appears in'my view that in arriving at an award for general damages, it
was as a result of "Lawrence's apparent lack of appreciation of his condition"
that the court considered that the amount of R70 000, 00 was an appropriate
amount for general damages, reducingthe amount of R90 000 awarded ir
the Katz's case by R20 ooo;
(102] However it does not appear to me, on a reading of the Bobape case,
that in 1990 Levy J , when determining the appropriate amount to award in
thà Bopape case , considered that at least a decade had passed since the
award' of R90 000 had been made in Katz's case and that with the passage of
time, there would have been the erosion of money and the steady decrease
in the value of money due to inflation which would affect any award he
determined in the Bobape matter, some 10 years later.
[103] In the Katz's (supra) case the trial court in awarding the amount of
R90 000 in 1979 took into' account some 10 previous recorded cases of
awards of paralysis, brain damage and multiple injuries- These ranged from
R15000 for quadriplegia in .1964 to R34 000 for multiple injuries in 1975. The
15/3/2@@7 11:26 AHIGHCOURT PAGE 37/46
03
436
trial court it appeared bore in mind the steady decrease in the value of money
due to inflation, and also considered that the value of the rand was only worth
about 40c compared with its value in the early .1960's.All this was to get some
idea of the general pattern of awards. Bearing in mind the erosion in the
• value of money, the trial court determined the quantum of general damages at
R9O, 000 in the Katz case,
• SEE: Marine & Trade Insurance Co LtdV Katz NO 1979(4) 961, at 952 A - E
[104] All the cases that have been referred to me by both counsel have
served as a useful guide in assessing the general damages to be awarded in
this case.
• [1051 Mr Wessels has submitted that the suffering of the Delport.plaintiff was
similar to the suffering that Moshe was going through. Moshe was unable to
• communicate effectivelywith people, express his needs and this increased his
frustration and suffering tremendously. Levy J in the Bobape case clearly
compared the severity of the injuries of the child to that of the plaintiff in Katz
case but does not appear to have considered the updated value of the Katz
award and the erosion of money a decade later when determining the amount
to award for general damages. The amount of R70 000 •awarded in the
Bobape case updated amounts to R246000The amount awarded in Katz in
1979 updated amounts to R1,610,000.
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37
[iO6 Most of the cases referred to in the Quantum of Damages by Corbett,
Buchanan and Honey are replete with courts taking into account the decrease
in the value of money. in the assessment of awards. It appears that updated
• values of past. awards have, also been considered by our courts and taken
into account in arriving at a fair and equitaie assessment of general
damages.
• [107] In Sigournay V Glllbanks 1960 (2) SA 552 (A) at 556A-C it was held:
"Nothing like a hard and fast rule or definite standards is to be found in a•
mailer so closely linked with the peculiar circumstances of each case, but
some guidance is to be derived from the notion that fairness to both parties s
likely to be served by a large measure of continuity in the size of awards,
where the circumstances are broadly similar.... If there has been a marked
change in the value of money since earlier otherwise comparable, awards
were made, this should be taken into account, but not with such anadherence
to mathematics as may lead to an unreasonable result (Cf. Norton and Others
v Ginsberg, 1953 (4) SA (A.D.) at pp 541 and 551)?
[108] In Protea Assurance Company Limited V Lamb 1977 (1) SA 530 AD at
534H-535A it was held:
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03
38
• It is settled law that the tria! Judge has a large discretion to award what he in
• the circumstances considers to be a fair and adequate compensation to the
•
injured party for (the) sequelae Of his injuries."
Andat 535H-536B it was held:
". .the trial Court or the Court of Appeal, as the case may be may pay regard
•
to comparable cases. It should be emphasised1 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 enquiry as tobecome 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 n 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 sequeiae may have been either more serious or less than
those in the case under consideration."
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39
• [109] In Norton and Others v Ginsberg 1953 (4) SA 537 AD at 541C-E it was
held:
it is natural and right that, where it is common knowledge that.there has
been a considerable change in the value of money1 some effect should be
given to this fact. The aliowahcè must necessarily be. rough and should, I
think, incline to conservatism. But some allowance should be made, not only
when the Judge makes a direct comparison with the sums awarded in cases
decided before the change, but also when he is applying his generalised
experience of the sort of sum that is usual and therefore appropriate in such
cases." .
[110] In Southern Insurance Associatioflv Bailey NO 1984 (1) 98 AD at
•119G-H it was held that:
• "This Court has never attempted to lay down rules as to the way in which the
• problem of an award of general damages should . be approached. The
accepted approach is the flexible one described in the often quoted statement
of Watermeyer JA in Sandier v Wholesale Coal Suppliers Ltd 1941 AD 194 at
199:
"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 upon the Judge's view of what is fair in all the
• circumstances of the case."
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t. 40
I do not think that we should now adopt a different approach. To do so might
result in injustice of the kind referred to in Lord Scarman's speech in the Lim
Poh Choo case. This does not mean, of course, that the function to be served
• by an award of damages should be excluded from consideration. That is
• something which may be taken into account together with all the other
circumstances."
(111] (n the case of Delport, (supra) Hartzenburg J considered several
comparable cases and their updated values in arriving at a fair and just award
in the amount of Ri 250000 for general damages for a woman who had
similar injuries to Moshe but who was in pain and had full realisation of her
predicament. This amount updated amounts to Ri 418000.
(112j Mr Du Plessis has argued that there was no evidence that Moshe
suffered any emotional pain, frustration or distress and the Delport's case
must be distinguished from Moshe's situation because in the Delport case the
patient had profound insight into her situation and was severely emotionally
distressed as a result thereof. He argued that general damages should not be
more than R300 000, 00. Mr Du Plessis argued that Moshe had no insight into
his condition in and this was an important factor that should be taken into
account by the court. However, with regard to his emotions It was clear that
when he was surprised or happy he showed clearly certain squeals of delight
recorded by certain experts.
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03
41
•[1131 He, stated that the closest that one got to Moshe's insight was when Ms
Van Vuuren testified that there was emotional pain present during the
interview. Mr Weasels argued that Moshe has some insight into his condition
but it was difficult to assess exactly,hOWmuch.
(11 4j This Court in my view' cannot rule out that Moshe is totally unaware of
the situation that he finds himself in. Moshe is aware of his surroundings and
retains in my view an appreciationof his condition in a limited manner. His
enthusiasm and excitement is expressed by his screeching and squealing
during the interviews. In my view his inability to be expressive about his
feelings whether its pain or pleasure is hampered by Moshe's difficulties to
communicate intelligibly. Accordingto Dr. Edeling it was not possible to be
• sure to what extent Moshe experienced pain because of the lack of
communication. Ms Van Vuuren testified that Moshe was experiencing some
level of emotional pain even though he may not have profound insight into
what has happened to him. His reaction to the resident cat was apparent from
the change in his mood. It is clear from the testimony of all those that Moshe
has :interacted with, that he feels joy and pleasure in his interaction with
• people In his surroundings viz his father, the interpretor from the attorneY'S
office and the parties experts.He is reactionary, in all of these circumstances.
• He responds with emotions such as' frustration, sulking, or pleasure. He
expressed delight with certain activities, seeing certain people and even a
PAGE 43/463 A HIGHCOURT15/@3/20@7 1126 @
U3
42
packet of chips gave him pleasure. In my vieW all this shows some insight.
Whether 'he has a much deeper insight into and art appreciation of his current
condition in contrast to his earlier life is difficult to ascertain. 'But I cannot find
that Moshe has.VirtUallY no awareness of' h predicament.
1 151 In the circumstancesI cannot find that Moshe does not appreciate the
condition he finds himself in.To a limited extent he is aware and retains some
insight into his hopeless' and tragic conditiOn. '
[1161 It is common cause that Moshe sustained a severe head injury which
has had a devastating 'effect on him. He has profound neurological
impairments and disfigurement which are prominent andirreversible. He is
incontinent, unable to walk, unable to sit without a restraining band and is
wheelchair bound. He seems to communicate mainly by screeches. His loss'
of amenities is profound.In the past he was able to use the computer, read
and write and enjoyed sport.
t1171 He is unable to articulate and express his needs because of h,inabflitY
to communicate on any intelligible level. He is not in a vegetative state nor is
he profoundly mentallydisabled. But he 'will not be a functional human being
again. Both the eXpertS for the plaintiff and the defendant were emotionallY
distressed by Moshe'S cøndltiofl.
15/03/2007 11:26
[120] Mr Wessels has argued that Dr Ormofld-BrOWfl and Ms De Beer be
declared necessary witnesses. They were notcalled as experts but they were
professional people who gave evidence which was necessary for the fair
adjudication of the case and a higher order should be granted than what
would be normally payable to an ordinary witness. In my view this argument
has merit. Both Mr Ormond-BroWn and Ms De Beer were professionals in
private practices and whose evidencewas necessary for a fair adjudication of
thi&?fld a special order in this regardshould be awarded.
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[1161 To award Moshe who is wheelchair bound, totally dependant on care
permanently disabled, severely spastic and totally Incontinent and wears a
nappy the amount of R300! 000 would be unjust, unreasonable and
inequitable.
[Ii 9] In my view Moshe's condition is far wdrse than the plaintiffs in the Webb
case (supra) and in the Mnguni case (supra)where the amounts of R 500 000
and R700 000 were awarded respectively for generaldamages.
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(121] In my view taking into account all of the aforegoing relevant facts, the
decrease in the value of money, the awards made in comparable cases, and
the severity of the injuries that Moshe sustained in the collision with the
resultant sequelae, a reasonable) equitable and just award for general
damages is an amount of RI million 'rand.
(122] In the result I make the following order:
1. The defendant is ordered to pay to the plaintiff the amount of
• R175 003, 07 for Past hospital and medical expenses.
2. The defendant is ordered to furnish the plaintiff with,an
undertaking in terms 'of section 17(4) of the Road Accident Fund
Act 65 of 1996 in respect of the claim for Future Medical
Expenses.
•
3, The defendant is ordered to payto the plaintiff the amount of
R2 297 9.74, 40 for ios of income.
4. The defendant is ordered to pay to the plaintiff the amount of
Ri 000 000, 00 (one million rand) for general damages for pain
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• and suffering, loss of amenities of life, disablement and
disfigurement.
5. The defendant Is ordered to pay the qualifying fees of the
following witnesses who are declared experts:
• '5.1 Dr Edeling (3 days);
5.2 Ms Van Vuuren,
• 5.3•
Mr Schmidt (2days)
••
5.4 Mr Rolland;
6. Mr Ormond Brown and Ms De Beer are declared necessary
witnesses;
7. The defendant is ordered to pay the plaintiff's costs including
• the costs consequent upon the employment of senior counsel.
HSALDULKERJUDGE OF THE HIGH COURT