Road Accident Fund Judgements- Kontos v General Accident Insurance Co SA Ltd1989(part 5)

Road Accident Fund Judgement part 5

In such circumstances, it seems to me that the view that all one need look at is the amount of money which David will be prevented from earning is a fallacious view. It ignores the consideration that he win be relieved of almost all the ordinary expenses of living.

I associate myself fully with this approach. I also associate myself with the comments of Corbett and Buchanan, op cit at p 73 on the Roberts case, supra, where the learned authors say:

Not to make an allowance in this manner results in overlapping of awards.

See also Southern Insurance Association Ltd v Bailey NO1984 (1) SA 98 (A) at 113F, Fletcher v

Autocar and Transporter Ltd 1968 (1) All ER 726 at 734A-G and 737D-H. See also Lim poh Choo v

Camden & Islington Area Health Authority 1979 (2) All ER 910 at 922A-C.

Whether an award in a particular case would result in overlapping or duplication of awards depends entirely on the facts of a particular case. In the present matter I am satisfied that, if the defendant pays the amounts in terms of the certificate for future medical and hospital expenses and I do not provide for a deduction in respect of expenses saved, there will be a duplication of compensation awarded.

Both counsel were in agreement that a great number of uncertainties around the question of the saving of expenses. That is indeed so. It is clear, however, that the plaintiff will inter alia be able to order himself food of his own hieing from a restaurant, or from family or friends. Furthermore, although it may be possible only on rare occasions, he will be able to visit a restaurant. Indeed the plaintiff will be able to bring some homely pleasures with its expenses to his hospital bed. In all the circumstances, I am of the opinion that the percentage contingency deduction in respect of both past and future loss of income should be 50 per cent.

I now turn to the question of general damages.

In this respect, it was submitted on behalf of the plaintiff that the award should be not less than R250 000, whilst it was submitted on behalf of the defendant that the award should be not more than R110 000.

I have to some degree set out above the plaintiff’s present condition. To put it mildly, the plaintiff finds himself in tragic conditions. It is difficult to imagine what the plaintiff has lost in life. It is enormous. Above it all, this man, who loved life so dearly, is now practically faced with a death sentence. It is expected that he will live no longer than another 17-18 months and he is fully aware of it. In his remaining lifespan he will practically be a living face and mind on a body with no life in it, save that particular care must be taken of that body to keep the face and mind alive. It is practically impossible to compensate the plaintiff for what he has lost. It is just as difficult therefore to assess the plaintiff’s general damages.

Before discussing the quantum of general damages it is perhaps worthwhile again repeating some of the factors relevant to this heading of damages.

The plaintiff has lost pratically all amenities of life. I need not make a list of such amenities for a bachelor of 28 years of age, who was a sociable, fun-loving, sporting type of person. In his present condition he must be taken care of for his every need, even in respect of the most personal needs.

The plaintiff, no doubt, went through tremendous mental and psycholigical trauma in realising what his condition was and accepting the situation. This very same man, who loved life so dearly, is now faced with the fact that he has a very short period to live. Fortunately for the plaintiff, he does not experience pain of any significant measure. He has come to terms with the state he finds himself in.

During argument, I was inter alia referred to the judgements in the cases of Marine and Trade Insurance Co Ltd v Katz NO1979 (4) SA 961 (A); 1979 (3A2) QOD 1 (A) and Administrator General, South West Africa and Others v Kriel1988 (3) SA 275 (A).

Regarding awards in comparable cases I can do no better than to refer to Corbett and Buchanan(op cit at p 7) where the learned authors state the following:

In determining the quantum of general damages in personal injury cases, the trial court essentially exercises a general discretion. This discretion is not fettered by inexonerable tariff drawn from previous similar awards. In the first instance, a proper basis for comparison must be ascertained. It is enough to compare the general nature of the injuries; all factors affecting the assessment of damages must be taken into account. Once it is established that the circumstances are sufficiently comparable, then such cases are to be used to provide a general yardstick to assist the court in arriving at an award ‘not substantially out of general accord with previous awards in broadly similar cases’.

Continue to Part 6—>

Comments are closed.