THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
CASE NO. 183/2004

In the matter between

THE ROAD ACCIDENT FUND
Appellant

and

PETRUS JACOBUS DELPORT NO
Respondent

___________________________________________________________
CORAM:
ZULMAN, VAN HEERDEN et PONNAN JJA

HEARD:
15 FEBRUARY 2005

DELIVERED:    31 MARCH 2005
___________________________________________________________

Summary: Delict –personal injuries – Quantum of damages – Assessment
of damages for loss of earning capacity and general damages – appeal
court declining to interfere with awards made by trial court
___________________________________________________________

JUDGMENT
___________________________________________________________
ZULMAN JA

[1] The respondent is the curator ad litem of Helen van Rooyen (the
patient). The patient suffered horrendous permanent injuries in
consequence of a motor collision which occurred on 16 January 1997. The
respondent instituted an action against the appellant for the recovery of
damages suffered by the patient following upon the injuries sustained by
her. The Pretoria High Court (Hartzenberg J) awarded damages in the total
sum of R3 616 697,57, computed as follows:

Past medical expenses

R   525 774,58

Damages for loss of earning capacity
R1 840 923,00

General damages for pain, suffering

and the loss of the amenities of life

R1 250 000,00
[2]    The appellant, with the leave of the court below, appeals to this court
only in respect of the awards for loss of earning capacity and general
damages, contending that the order made by the court below should be set
aside and substituted with awards of R845 212,00 and R800 000,00,
respectively. The total amount in dispute is thus some R1 445 711,00.
[3] The injuries sustained by the patient that are set out in detail in
various medico-legal reports tendered in evidence (including a
comprehensive report by a Dr Richard Holmes, a psychologist) are not in
dispute. The appellant accepts that those injuries have rendered the patient

totally disabled and that, from the date of the collision she has not been -
nor will she in the future be - able to earn any income. It further accepts, as
held by the court below, that the patient’s earning capacity, subject to an
adjustment for contingencies, must be calculated on the basis that in 2003
she had a life expectancy of 22 years.
The patient’s personal and work history
[4] The patient was born on 4 November 1960 and was thus 36 years
old at the time of the collision. She matriculated in 1977, the year her first
daughter was born. Her second daughter was born in 1981. Her first
marriage, which was not a success, lasted some four years from 1982 to
1986. She first worked as a personnel clerk at a business called Cremart
which became part of Genkem in 1985. She worked there until 1989 when
she obtained a position as a personnel officer at the Rand Mutual Hospital,
where she was responsible for the administration of approximately 400
workers. She remained in that position until November 1993 when,
together with her present husband, she began work in a restaurant in
Melville, Johannesburg.
[5] Her second marriage, which commenced in 1988, was a particularly
successful and happy one. Her daughters accepted her husband as their
father and he regarded them as his own children. In his undisputed

evidence, her husband described the period which he had spent with the
patient, before the collision, as the best nine years of his life. It is apparent
from the evidence that there was a very close and loving relationship
between them. They enjoyed a fulfilled and energetic life style. They
bicycled and exercised together, participated (on a competitive level) in
Latin-American and ballroom dancing, and took overseas trips together.
Their close bond extended into the work place and each manifested a warm
enthusiasm for life and work. They enjoyed a high standard of living and
each complemented the other in the skills that they brought to the
workplace.
[6] According to the evidence of a friend, a certain Mrs Starck, who was
a co-employee at Genkem, the patient then earned approximately
R3500,00 per month and was an outstanding worker. The personnel
manager at the Rand Mutual Hospital, Mr Richardt, testified that the
patient, whom he regarded as an excellent worker, earned approximately
R4500,00 per month whilst in the employ of the hospital.
[7] The restaurant, which the patient subsequently operated together
with her husband, in his words ‘as equal partners’, could serve 250 persons
at any one sitting. It was open approximately 20 hours a day and was very
successful, with a turnover of approximately R2 million a year. Although

they had two managers, the patient was responsible for numerous
administrative tasks, including the purchasing of supplies and the
maintaining of the books of accounts. She played a key role in the
management and undoubted success of the restaurant business, displaying
at all times a great capacity for work. The patient’s husband testified that
the patient drew R6000,00 per month from the business although this was
not reflected on the books of account of the business.
[8] At the end of 1996 the patient and her husband sold their house in
Johannesburg for a profit of approximately R2 million. They then
purchased a house in Seaview, Port Elizabeth, where they intended to
relocate. Their plan was to take an overseas holiday for a few weeks in
May/June 1997 and, after their return, to purchase and operate a new
business. They had already started investigating various business
possibilities. Shortly before the collision, a 20% share in the restaurant
business was allocated to the two managers of the business. The remaining
80% was subsequently sold to the two managers for approximately R1,2
million. After the collision the patient’s husband had purchased and
operated two restaurants in Port Elizabeth, subsequently selling one of
them.
The accident and its sequelae

[9] The patient was rendered immediately unconscious in consequence
of the collision and remained so, without any sign of movement, until her
arrival at the Kroonvaal Private Hospital later that same day. The physical
injuries suffered by her were a severe head injury (in association with a
loss of consciousness) and widespread injuries to the chest, left wrist,
pelvis, left thigh and left lower leg.
[10] At the Kroonvaal Hospital she required intubation and ventilation.
She was admitted to the intensive care unit on the day of the collision and
in due course various operative procedures had to be performed on her. On
21 January 2003 she was transferred to the Flora Clinic. She was again
admitted to the intensive care unit where her condition was described as
‘critical and unsatisfactory’. She still required naso-gastric feeding,
intropic support and ventilation via a tracheostomy. Her Glasgow Coma
Scale was recorded as 6/15. She remained in the intensive care unit at the
clinic until 31 January 1997, during which time she required several
courses of antibiotics for a chest infection. She was then transferred to the
neurological high care unit where she remained until her transfer on 27
February 1997, at her husband’s request, to the Greenacres Hospital in Port
Elizabeth. The patient was subjected to further operative procedures before
being discharged on 27 May 1997 to her home in Port Elizabeth, where she

remained in the care of her husband, a full-time resident enrolled nurse,
and a team of care assistants. After three years she was once again
institutionalised in Port Elizabeth. Since 18 February 2003, the patient has
been in the care of the Lily Kirschman Frail Care Unit in East London. Her
daughter, Elizabeth Keulder, who testified during the trial, lives in East
London and visits her twice a day.
[11] It is common cause that the patient is unable to speak; that she has
no control over either her bladder or her bowel and has been fitted with a
catheter which needs to be changed every four weeks; that she is not able
to swallow and is fully  on a gastronomy feeding tube for all her nutritional
and fluid needs; that she has little, if any, movement of the right side of her
body and only very limited control of her left hand. She still suffers from
headaches; abdominal cramps; discomfort of the bladder; numerous
bladder infections; spastic contractions of the right arm; intermittent pain
of the left hip; and general body stiffness. She, however, has no significant
loss of sensory function. This means that she experiences - but has no
independent means of alleviating – pain and discomfort (especially when
being handled).
[12] The patient has been rendered patently incapable of any form of
work. In the opinion of Dr Holmes she has suffered ‘an obliteration of her

pre-morbid employment prospects, employability and potential to derive
an income.’ She has been rendered profoundly disabled, is in need of
twenty-four hour care and is completely dependent on the assistance of
others. She is essentially confined to her bed. As such she has been denied
the opportunity of any form of social interaction beyond her immediate
environment and does not have any means of mobility.
[13] The patient can now communicate only through non-verbal facial
expression, nodding and shaking her head, and making use of an alphabet
communication board on which she ‘spells out’ words using her left hand.
Because of her limited control of this hand, communication with the
alphabet board is slow and extremely laborious and only possible with
people who know her very well, such as her daughter. While she could
benefit from the provision of an assistive/augmentative communication
device, her ability to communicate will still remain severely compromised.
It should be noted that, despite the fact that the appellant was issued with a
certificate in terms of s 17(4) of the Road Accident Fund Act 59 of 1996 in
respect of the patient’s accommodation and medical and hospital expenses,
the appellant’s handling of the matter since the trial has been such (more
about this later) that the patient has not yet been provided with any of the
assistive devices recommended for her use by the medical and other

experts.
[14] In his report, Dr Holmes describes the patient’s neuro-psychological
and emotional condition in the following terms:
‘Retention of sharpness of mind (described as “one hundred percent” by her daughter);
Some loss of memory (for a period in her life);
Good long-term memory (good recall of previous events);
Ongoing severe depression;
Feelings of extreme frustration (when being handled, showered and toileted, etc.);
Ongoing tendency to cry (emotional lability);
Ongoing good sense of humour (but inability to give expression to the same);
Having a very active mind (“trapped in her body”);
No ability to communicate (conventionally, that is) and
An acute awareness of her situation and limitations resulting in profound emotional
trauma.’
[15] Put simply, the patient is a person with an alert and active mind
trapped in a non-responsive body. She is completely unable to engage in
the ordinary functions of life. The undisputed evidence is that, before the
collision, she was a happy, dynamic and active person who enjoyed
amenities such as cycling, competitive dancing and travelling. She is now
clearly unable to participate in any such activities or indeed to lead
anything resembling a normal life. A video recording was led in evidence
depicting her present condition. Any viewer of that video tape cannot help

but be deeply moved by the graphic way in which her plight is depicted
thereon.
In the words of Dr Holmes:
“The psychological and emotional trauma experienced by her, on an ongoing basis, is
profound – almost defying contemplation and appreciation.”
Damages for loss of earning capacity
[16] The appellant attacks the way in which the court below dealt with
the patient’s past loss of earnings, the contention being that it was incorrect
to find, as the court below did, that the patient would have entered the
employment market some seven months before March 1998. In my view
this argument was correctly rejected by Hartzenberg J who found, on the
undisputed evidence of the patient’s husband as well as her daughter, that
she was the type of person who was so highly motivated and industrious
that she would in all probability have returned to work during August 1997
shortly after her overseas trip. That was the date used by the actuary, Mr
Jacobson, in making his calculations.
[17] As regards the patient’s loss of future earnings, the appellant
contended that the court below erred in employing the fiction that, had
there been no collision, the patient would have returned to the structured

labour market. Hartzenberg J dealt with this contention in the following
terms:
‘Ek bevind dus dat die pasiënt ‘n verlies aan verdienste vermoë gehad het. Vanweë die
werklike verloop van haar beroepsloopbaan, is daar ‘n hele aantal onsekerhede. Die
eiser het om veilig te wees hierdie eis probeer kwantifiseer deur die pasiënt se
verdienste vermoë in die gestruktureerde arbeidsmark te bepaal. Ek het reeds aangedui
dat ek van mening is dat dit minder behoort te wees as wat sy waarskynlik sou verdien
het deur saam met haar man besigheid te doen... Die enigste oorblywende vraag is dan
of die berekening wat namens die pasiënt gebruik is, realisties is of nie. Die eiser
gebruik vanaf 1 Augustus 1997 ‘n jaarlikse inkomste van R46 560,00. Dit is minder as
R4 000,00 per maand. Sy het reeds in 1993 R4 500,00 verdien. Mnr Jacobson, die
aktuaris, het vanaf 2003 toegelaat vir inflasie teen sewe persent per jaar. Hy het egter
ook gekapitaliseer teen tien persent. Hy het toegegee dat sy inflasiekoers dalk te hoog
kan wees maar het aangevoer dat as dit die geval is, sy kapitalisasiekoers ook te hoog
is. Hy hou vol dat die netto effek as jy die inflasiekoers en die kapitalisasiekoers teen
mekaar opweeg, redelik en billik is en op die wyse waarop die getuienis aangebied is, is
daar werklik geen rede om nie daardie getuienis van hom te aanvaar nie. Vanweë die
feit dat daar hier met ‘n fiksie van die gestruktureerde arbeidsmark gewerk word en
vanweë die feit dat die pasiënt en haar eggenoot hulle in besigheid sou bevind het,
meen ek dat daar groter voorsiening vir gebreurlikheide toegelaat moet word as
waarvoor Mnr Jacobson toegelaat het.’
In my view the learned judge was correct in rejecting that contention. If
anything, the assumptions relied on by him redounded to the appellant’s

benefit. Prior to the collision, the patient had been drawing approximately
R6 000,00 per month from the restaurant business and according to the
uncontested evidence of her husband, during October 2003 the restaurant
manager employed by him in his restaurant in Port Elizabeth was earning,
as a salaried employee (working regular hours), R 6 500,00 per month
(plus certain benefits). When Mr Jacobson’s calculations were put to Dr
Holmes during the trial, the latter’s view was that they were ‘very, very
conservative…certainly lower than it should be’. In my view the remaining
evidence supports this view. Moreover, Hartzenberg J made greater
allowance for that fiction than Mr Jacobson did, by increasing the
contingency factor in respect of both past and future loss of earnings from
5 to 10 percent and 15 to 20 percent, respectively. I can find no fault with
his approach in this regard.
[18] The final objection to the assessment by the court below of the
patient’s loss of future earnings was based upon the proposition that she
would have ceased working at age 55. This contention is belied by the
uncontradicted evidence of the patient’s husband and daughter that she
would, given her disposition, in all probability have continued working at
least until the age of 65. That, indeed, was the finding by the court below

and there appears, on all of the available evidence, to be no basis for
interfering with it.
[19] The appellant contends that any amount awarded to the patient for
loss of earning capacity should be reduced in some way because she will
be confined to an institution for the rest of her life and, accordingly, so the
argument went, her living expenses will thereby be reduced. The court
below dealt as follows with that contention:
‘Ek wil net op hierdie stadium meld dat ek definitief verskil van Mnr Delport [counsel
for the appellant in the trial court] wat aanvoer dat daar op ‘n manier ‘n vermindering
van die pasiënt se skade moet wees omdat sy nou bedgekluister is en gevolglik nie meer
mooi kan aantrek nie, nie kan reis nie en nie geld kan uitgee op vermaaklikheid nie. Dit
lê nie in die mond van die persoon wat verantwoordelik is vir die pasiënt se toestand
om ‘n voordeel te wil beding vir hierdie gevolg wat myns insiens niks met die delik
pleger te doen het nie.’
[20] It is not necessary to express a view on the correctness or otherwise
of the learned judge’s general statement in this regard. This is so as no
evidence whatsoever was led by the appellant as to the nature or extent, if
any, of such savings. Nor, was this aspect canvassed during the cross-
examination of the respondent’s witnesses. In those circumstances, it can
hardly be contended that the learned judge erred in not reducing the
amount awarded for loss of earning capacity by failing to take into account

alleged savings, the existence, nature and extent of which had not even
been touched on in the evidence before him.
General damages
[21] I now turn to consider the award of R1 250 000,00 as general
damages for pain and suffering and the loss of the amenities of life. I refer
to what I have stated above in regard to the patient’s obvious severe pain
and suffering and loss of the normal amenities of life. In addition, the
patient has effectively lost her husband as a result of the collision – he no
longer visits her and is apparently planning to divorce her. His evidence in
this regard was to the effect that, although he still loves her, his feelings for
her are akin to that felt for a child and not a spouse. This loss of an
exceptionally happy marriage relationship obviously severely exacerbates
the patient’s psychological and emotional suffering. This is a case where
the patient is acutely aware of her pain, discomfort, profound disablement,
total dependence upon others and loss of nearly all the amenities of her
pre-collision life. She has to cope with that awareness for the rest of her
not inconsiderable life span.
[22] It is trite that an award of general damages, falling as it does within
the wide discretion of the trial court, will not lightly be interfered with by a
court on appeal. The position is well summarised by HJ Erasmus and JJ

Gauntlett1 in these terms:

“(a)
...

(b)
Where the assessment of the amount of damages is a matter of
estimation rather than calculation, the trial court has a wide discretion to
award what it in the particular circumstances considers to be fair and
adequate compensation.

(c)
Where the amount of damages is a matter of estimation and discretion,
the appeal court is generally slow to interfere with the award of the trial
court - an appellate tribunal cannot simply substitute its own award for
that of the trial court. However, once it has concluded that interference is
justified in terms of the principles set out in (d) below, the appeal court
is entitled and obliged to interfere.

(d)
The appeal court will interfere with the award of the trial court:
(i)
where there has been an irregularity or misdirection;
(ii)
where the appeal court is of the opinion that no sound basis
exists for the award made by the trial court;
(iii)
where there is a substantial variation or a striking disparity
between the award made by the trial court and the award which
the appeal court considers ought to have been made. In order to
determine whether the award is excessive or inadequate, the
appeal court must make its own assessment of damages. If upon
comparison with the award made by the trial court there appears

1 In the title on ‘Damages’ 7 Lawsa (reissue) (revised by PJ Visser) para 117 p 89.

to be a “substantial variation” or a “striking disparity”, the appeal
court will interfere.’
[23] In my view the finding of the court below is manifestly free of any
misdirection or irregularity. It carefully considered the question of general
damages and motivated its conclusion inter alia with reference to the
principles enunciated in Marine & Trade Insurance Co Ltd v Katz NO
1979 (4) SA 961 (A). Although the sequelae of the injuries sustained by
the patient are more serious than those in the Katz case, that case is similar
in many respects to the present case. In Katz an award of R90 000,00 was
made in respect of general damages. Translated to the values prevailing at
the time of the trial, the award made in the Katz case is approximately
R1 452 000,00, which is some R200 000,00 higher than that awarded by
the court below in this matter. Having said this I do not believe that courts
should necessarily be wedded to previous awards, particularly those in
which circumstances may differ.
[24] The matter was well put by Brand JA in De Jongh v Du Pisanie NO
[2004] 2 All SA 565 (SCA), in the following terms:
‘[64] ... die vasstelling van nie-patrimoniële skade [is] in die diskresie van die hof. By
die uitoefening van die hof se diskresie is vergelyking met toekennings in vorige sake
‘n nuttige hulpmiddel omdat dit darem vir die hof die breë parameters oftewel ‘n
patroon aandui waarbinne sy toekenning tuisgebring moet word. Dit is ook ‘n nodige

riglyn omdat konsekwentheid in toekennings ‘n inherente vereiste van billikheid is.
Nietemin bly dit steeds ‘n riglyn. Dit vervang nie die hof se diskresie met ‘n
letterknegtige gebondenheid aan die aangepaste waarde van vorige toekennings nie.
[65] Die stygende tendens van toekennings in die onlangse verlede is, soos ek
alreeds gesê het, duidelik waarneembaar. Die effek daarvan is egter weer eens nie met
matematiese presiesheid bepaalbaar nie. Dit is nie seker presies wanneer die tendens
begin het en wanneer dit sal eindig nie. Dit het bes moonlik reeds tot ‘n einde gekom. ...
As die vorige beslissings wat as maatstaf dien reeds met inagneming van die stygende
tendens gemaak is, kan dit nouliks geregverdig word om op grond van dieselfde
oorwegings sonder enige bykomstige rede, ‘n verdere styging toe te laat. Daarbenewens
verg die tendens klaarblyklik nie die vermenigvuldiging van vroeëre toekennings met
‘n voorafbepaalde of bepaalbare faktor nie. Op die ou end is die tendens maar net nog
‘n oorweging wat die hof geregverdig is om in ag te neem wanneer hy, by die
uitoefening van sy diskresie, na vorige toekennings, veral in ouere sake, as riglyn
verwys.’
[25] In so far as guidance is to be sought from previous awards and
although the amount of R1 250 000,00, at first blush, appears high, I
certainly do not regard it as excessive (“buitensporig”) as contended for by
the appellant. Given the circumstances of this case, in particular the
extremely serious injuries which the patient suffered and their tragic
sequelae, I certainly would have awarded, as general damages, an amount
which would not have differed substantially, if at all, from the amount

awarded by the court below. I accordingly see no warrant for interfering
with the exercise by that court of its discretion.
The appellant’s conduct after the trial
[26] Before concluding this judgment I believe that it is necessary to
record what can only be described as deplorable conduct on the part of the
appellant. Notwithstanding the fact that the appellant conceded that the
patient was entitled to an award of approximately R1 600 000,00 in respect
of loss of earning capacity and general damages, it made no payments on
account of such award before December 2004. Judgment was given by the
court below in favour of the respondent on 22 October 2003. Thereafter
various attempts were made to obtain payment from the appellant of the
admitted amounts. Those attempts were unsuccessful. The respondent was
obliged to bring an application during August 2004, claiming:
1.
An order that the appellant pay for the appointment of the curator ad
litem and the curator bonis of the patient as well as the attendance at
the trial by the curator.
2.
A declaratory order confirming that the appellant was liable for
100% of the past medical costs claimed in terms of the s 17(4)
undertaking given by the appellant.
3.
Payment of an amount of R1 720 000,00 being partial payment of

the loss of earnings and general damages awarded to the respondent.

[27] The application was opposed and an opposing affidavit raising
various technical issues was filed. Before the hearing of the matter it was
settled by agreement between the parties in the following terms:
1.
The appellant conceded liability for the costs of the curator ad litem
and curator bonis;
2.
The appellant also conceded liability in respect of the payment of
100% of the patient’s past medical costs claimed in terms of the
undertaking;
3.
It was agreed that the appellant would pay R1,6 million to the
respondent pending the appeal to this court, in five monthly
instalments of R320 000,00 each.
The agreed instalments of R320 000,00 were paid for the months of
December 2004,  and January and February 2005.
[28] When the failure of the appellant to make timeous payment of the
non-disputed amounts was put to counsel for the appellant in this court, he
sought time to obtain proper instructions and to thereafter file a written
response explaining what, on the face of it, amounted to a shocking breach
by the appellant of its statutory obligations. Subsequently a detailed written
explanation and apology was filed by the appellant. The appellant

apologised ‘without reservation’ for the delay that was caused in making
payments and for any inconvenience and discomfort caused to the patient,
her relatives and any other involved parties. It stated that the purpose of the
written explanation was aimed not at ‘justifying the conduct of the Road
Accident Fund but … at placing facts before the Honourable Court which
are with respect necessary to enable the Honourable Court to fully
understand the circumstances of the matter.’ In the result the appellant
undertook to pay the balance of the amount of R1 600 000,00 before or on
28 February 2005; to reconsider the past medical expenses paid in terms of
the undertaking given and to make ‘an adjustment payment’ before or on
the abovementioned date; and furthermore promptly to pay any further
amount ‘that may still be owing as a result of the imminent judgment’ of
this court inclusive of any relevant costs, if applicable. The respondent was
furnished with a copy of the explanation and apology and accepted the
contents thereof. The respondent furthermore confirmed that the balance of
the amount of R1,6 million had in fact been paid as undertaken.
[29] The court thanks those representing the appellant for the
comprehensive and detailed explanation as well as the promptitude with
which it was been furnished.  The hope is expressed that there will not be a
recurrence of such conduct on the part of the appellant in similar cases in

the future.
Conclusion
[30] Reverting to the merits of the matter I am satisfied, in view of what I
have said above, that the appeal is without merit. Accordingly the appeal is
dismissed with costs, such costs to include the costs attendant upon the
employment by the respondent of two counsel.

__________________________

R H ZULMAN

JUDGE OF APPEAL

VAN HEERDEN JA
)
PONNAN JA

)CONCUR