Road Accident Fund Judgement- Kontos v General Accident Insurance Co SA Ltd1989 (Part 1)

Summary

Injured person:

Bachelor aged 28 at time of accident and about 33 at time of trial. Above-average and active sportsman.

Synopsis of injuries and after-effects:

Spine. Quadruplegia. Resulting from major spinal cord lesion. Partial paralysis of shoulder girdle muscles, total paralysis of all accessory muscles of respiration and total quadruplegia. Coupled to respirator via permanent indwelling tracheostomy tube. Plaintiff unable to move any muscle or part of his body except his eyes, facial muscles, tongue and jaw. Requiring continuous respirator support and constant general nursing care, including two-hourly turning, feeding by attendant, physiotherapy for passive removal of lung secretions, continuous bladder drainage by means of condom and tube, manual evacuation of bowels, treatment of pressure sores, etc. Susceptible to variety ofcomplications, any one of which could rapidly terminate life. Life expectancy after trial estimated at about 18 months. Unable to speak due to indwelling tracheostomy tube.

Fully aware of his condition and loss, and had passed through various stages of depression and frustration.

Issues for decision:

1. The percentage of the contingency deduction to be made in respect of (agreed) past loss of income

2. The percentage of the contingency deduction to be made in respect of (agreed) future loss of income.

3. General damages.

As to 1 and 2 the Court, being mindful of the fact that the Plaintiff would not be required to keep and finance a dwelling (and incidental expenses) separate from the hospital, and that the awards were destined not for the Plaintiffs heirs but to make his suffering more bearable, reduced both past and future loss of income by 50%.

As to general damages the Court awarded R120 000.

In respect of future loss of income as well as future medical and hospital expenses the Defendant furnished an Undertaking in terms of section 21(1c)(a) and (b) of Act 56 of 1972.

Judgement

Van der Merwe J:

On 25 May 1985 a collision occurred at or near the intersection of claim and Hancock Streets, Joubert Park, Johannesburg, between a motor vehicle insured by the defendant and a motor vehicle driven by the plaintiff. As a result of the collision the plaintiff sustained a serious injury of a permanent nature, namely a fracture dislocation of C4 and C5 which resulted in a major spinal cord injury. After initial treatment in the Johannesburg General Hospital the plaintiff was transferred to the Spinal Unit, H F Verwoerd Hospital, where it was found that the neurological deficit was at a level of C3 with resultant partial paralysis of the shoulder girdle muscles, total paralysis of all accessory muscles of respiration and total quadruplegia. The level of neurological deficit implies bilateral phrenic nerve paralysis with resultant total functional loss of diaphragm, the major muscle of respiration. The diaphragmatic paralysis is

permanent and irreversible. To enable the plaintiff to breathe, he is coupled to a respirator via a permanent indwelling tracheostomy tube. This state of affairs will continue for the rest of the plaintiff’s life. There has been no neurological recovery since the collision and there will be no recovery in the future.

Continues on Part 2—>

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