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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

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(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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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

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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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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

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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.

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[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.

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[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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[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

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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

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• 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

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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.

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• [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

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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

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• 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

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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

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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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(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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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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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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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.

15/@3/20e7 11:25 A HIGHCOURT PAGE 26/45

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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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

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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

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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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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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• [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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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 @

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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.

PAGE 44/4603 A

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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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PAGE 45/46

44

(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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PAGE 46/4633

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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