Road Accident Fund Judgement- Kontos v General Accident Insurance Co SA Ltd1989(part 6)

Road Accident Fund Judgement Part 6

The Court will also take into account the effect which its decision may have upon the course of future awards.

I have followed the same approach. Similarly, I have followed the approach regarding the changes in the value of money as set out by the same authors at pp 7 and 8. It is clearly established that the fall in value of money is to be taken into account in considering comparable awards, as well of course in calculating future loss. Our Courts have, however, resisted a recklessly exact approach in allowing for inflation. Thus the Appellate Division has held in markedly broad terms that inflation is to be taken into account, ‘but not with such an adherence to mathematics as may lead to an unreasonable result’. The ‘unreasonable result’ contemplated is not further delineated. One premise would appear to be that it may be considered socially undesirable for courts to allow for inflation with such vigour as to be seen to be in turn contributing to its further spirals.

Another is that it may not necessarily be appropriate to allow for inflation in the calculation of

non-patrimonial damages by applying an inflexible formula, such as a consumer price index. The net result is that the allowance for the erosion of the value of money is necessarily a rough one and should probably incline to conservatism. The prevailing judicial approach is to indicate that allowance has been made for this factor in arriving at a lump sum award, but without specifying the particular rate.

I do not intend discussing or analysing the facts of the Katz and Kriel cases, supra, in detail. The facts in the Katz case, supra, appear to me to be similar to the present one in many respects. There are however also differences. One marked difference is the fact that the injured in the Katz case was experiencing physical pain. Another difference is that the plaintiff’s expected lifespan in the present case is much shorter than was the position in the Katz case. The plaintiff in the present matter also suffers from the total inability to breathe on his own. I regard the award in the Katz case nothing more than a guideline to keep in mind. Although there are also many similarities, but also differences, between the facts of the Kriel case, supra, and the facts of the present matter, I cannot but regard the award in the Kriel case merely as a guideline.

I have earlier in this judgment referred to the certificate provided by the defendant in terms of Act

56 of 1972 in respect of inter alia the treatment of the plaintiff or the rendering of services or supplying of goods to him. It was submitted on behalf of the defendant that, in complying with the terms of the certificate, some compensation would have been made for at least the plaintiff’s loss of amenities of life. If that it not borne in mind, so the argument ran, it is quite possible that there can be an overlapping between the award for general damages and payments in terms of the certificate.

In coming to a decision as to the amount to be awarded to the plaintiff for general damages I have kept all the facts before me in mind. Without repeating all the facts again I may for purposes of clarity perhaps highlight a few of those facts. The plaintiff has a complete loss of amenities of life. Although he is not suffering physical pain at the moment, he has suffered a lot of mental anguish and frustration. The very short period of lifespan left to him must, if not now, then at least in the very near future, result in a lot of mental suffering. I have also kept in mind that the plaintiff’s needs, over and above those which will be paid for by the defendant, will be relatively small. I have further kept in mind that the award that I am about to make is destined, not for the plaintiff’s heirs, but as a means to make his suffering more bearable.

I am satisfied that whatever amount I award to the plaintiff for general damages can be used to his advantage, although it is in the end impossible to put him in the same position as prior to the collision. I have decided to make a globular award for pain and suffering, disfigurement, loss of amenities of life, etcetera.

After much consideration, I am of the opinion that an award of R120 000 for general damages will satisfy the principles set out above.

I have referred to the certificate furnished by the defendant and the undertakings therein contained. I have also referred to the agreements regarding past and future loss of income and the formula with which future loss of income will be increased as appears from exh Y. I therefore need only make an order regarding the percentage of contingency deduction in respect of past and future loss of income and the award for general damages.

The question of costs and the qualifying fees for the experts called by the plaintiff were not in dispute.

I therefore make the following orders:

1. The plaintiff’s past and future loss of income is subject to a 50 per cent contingency deduction.

2. The defendant is ordered to pay to the plaintiff as general damages the amount of R120 000.

3. The defendant is ordered to pay the costs of the action, which will include the costs of two counsel as well as the qualifying fees for Dr Van Wyk, Dr Holmes and Mr De Witt.

 

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