FORM A FILING SHEET FOR EASTERN CAPE JUDGMENT

1 FORM A FILING SHEET FOR EASTERN CAPE JUDGMENT ECJ NO: 106 PARTIES: ROAD ACCIDENT FUND APPELLANT and G.P VAN RHYN RESPONDENT Registrar CASE NO: CA403/05 and 405/05 Magistrate: Supreme Court of Appeal/Constitutional Court:EASTERN CAPE DIVISION DATE HEARD: 17/11/06 DATE DELIVERED: 9/2/07 JUDGE(S): PLASKET J JONES J LEGAL REPRESENTATIVES - Appearances: for the State/Plaintiff(s)/Applicant(s)/Appellant(s): NN Dullabh & Co for the accused/defendant(s)/respondent(s): Neville Borman & Botha Instructing attorneys: Plaintiff(s)/Applicant(s)/Appellant(s): Adv Scott Respondent(s)/Defendant(s): Adv Frost

2 CASE INFORMATION - Nature of proceedings : Appeals against quantum for general damages Topic: IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION) Case Nos. CA403/05 and 405/05 Date Heard: 17/11/06 Date Delivered: 9/2/07 Not Reportable In the matters between: Case No. CA 403/05 ROAD ACCIDENT FUND APPELLANT and G.P VAN RHYN RESPONDENT Case No. CA 405/05 ROAD ACCIDENT FUND APPELLANT and F.J VAN RHYN RESPONDENT

3 Appeals against quantum for general damages Test for interference on appeal re stated Held that there was no basis for interference with the awards of damages made by the court below. Appeals against costs order Test for interference on appeal re stated Held that there was no basis for interference with the costs orders made by the court below. The appeals were accordingly dismissed with costs. JUDGMENT PLASKET, J: [A] INTRODUCTION [1] The respondents in the two appeals before us, Mr G.P Van Rhyn and Mrs F.J Van Rhyn, are husband and wife. They were the victims of a motor accident when, on 7 June 2003, a motorcycle collided with the motor vehicle in which they were travelling. Both sustained soft tissue injuries for which they claimed damages from the appellant (referred to hereafter as the Fund). [2] They succeeded in their claims in the Magistrate s Court, Uitenhage: the Fund conceded the merits and, in the trials (in which the only issue of substance was the quantum for general damages, the amount of R60 000.00 was awarded to Mr Van Rhyn and the amount of R50 000.00 was awarded to Mrs Van Rhyn. In addition, an order of costs was made against the Fund in both matters which included the costs of counsel, such costs to be taxed on a higher scale within the discretion of the Taxing Mistress as provided for in item 26(b) and (c) of Annexure 2, Part IV, Table A.

4 [3] The two appeals before us are directed both at the quantum awarded to Mr and Mrs Van Rhyn for general damages and the aspect of the costs order that I have cited above. [B] QUANTUM [4] Mr and Mrs Van Rhyn testified in their respective trials on the injuries they sustained and the consequences thereof. In addition, Dr J.F. Forgus, an orthopaedic surgeon, also testified in each trial on the nature and extent of the injuries sustained by them. [5] The first matter to be heard was that of Mr Van Rhyn. (a) Mr Van Rhyn [6] Mr Van Rhyn is an attorney of 30 years standing. His practice involves a substantial amount of court work. He practices not only in the Magistrate s Court of Uitenhage, where his practice is situated, but also in the Magistrate s Courts of Kirkwood, Steytlerville and Willowmore. [7] Mr Van Rhyn testified that, on 7 June 2003, he, in the company of his wife, had been driving his car when he saw the motorcycle approaching. In anticipation of the fact that the motorcycle was going to collide with the car he brought the car to a halt. Despite this, when the collision occurred, it occurred with considerable force, propelling the car backwards. [8] Although Mr Van Rhyn suffered no cuts of bruises as a result of the accident, his upper body was placed under strain by the force of the collision. He experienced shock, especially when he saw the boy who rode the motorcycle lying on the road in obvious distress: indeed, Mr Van Rhyn

5 testified that he thought that the boy had been fatally injured. He moved away from the scene while his wife attended to the boy and he managed to contact the police on his cell phone. [9] Mr Van Rhyn testified that the shock that he experienced at the scene of the accident has, in a sense, remained with him: he said that he still experiences flashbacks of the accident in which he sees the motorcycle bearing down on him, with him being powerless to avoid the inevitable accident. The traumatic effect of the accident was heightened for him by the fact that he has a son who also rode a motorcycle. [10] As soon as he had made arrangements for his damaged car to be towed to a panel beater, he and his wife went to their doctor to be examined. As a result of the accident, he experienced pain in his neck for about 30 days. He also experienced back pain which has persisted since the accident without much in the way of respite. He reported both the neck pain and the back pain to the doctor on the day of the accident. [11] Although Mr Van Rhyn had never been involved in a motor vehicle accident before, he had experienced problems with his back for which he had been medically treated: in 2000 he had experienced back pain and had been placed on a conservative treatment regimen which had produced the desired result within a period of about six months. He confirmed that at the time of the accident, his back had responded positively to that treatment and he had experienced no back pain for some time. [12] While the duration of the neck pains that he experienced as a result of the accident was relatively short, the back pain was of a different order: he stated that ek het seker vir ʼn periode van die eerste ses maande het ek erger pyne

6 gehad. Maar ek het dit nou nog. As ek lank staan dan kry ek die pyn in my laer rug. Standing for long periods is the lot of every lawyer who appears in court. The back pain was also triggered by sitting on hard, uncomfortable chairs also an occupational hazard of lawyers who appear in the courts as well as when Mr van Rhyn was required to drive significant distances, which he did when he had to appear in outlying courts and when travelling to his weekend retreat in Jeffrey s Bay. [13] He testified that the back pain he endured while appearing in court affected the quality of his work: as the pain increased in intensity, his tension levels tended to rise which, in turn, would adversely affect his concentration. Sometimes he even had to ask for short adjournments so that he could take painkillers. [14] Apart from the effect of the back pain on his work, Mr Van Rhyn is also affected in more everyday ways. For instance, he testified that he is no longer able to bend forward to pick up an object that has fallen to the floor because of the pain that this causes in his lower back. He is also now unable to pick up heavy objects without experiencing pain. When he wakes up in the mornings his back is always stiff. This stiffness lasts for 15 to 20 minutes or even a bit longer, depending on the weather. He is now unable to do the odd jobs around the house that he previously did, such as mowing the lawn. [15] Dr Forgus testified in support of Mr van Rhyn s claim. He confirmed that the conservative treatment that had been administered to Mr Van Rhyn for his back pain prior to the accident should have resulted in him being free of pain at the time of the accident, as Mr Van Rhyn had testified. In respect of Mr Van Rhyn s neck injury, he described it as a soft tissue injury of moderate to severe seriousness, without any bone, nerve or nerve root injury, caused by

7 whiplash. Statistically, he said, most such injuries healed within six weeks. [16] Turning to the back injury, Dr Forgus said that it was caused by the vehicle being pushed backwards by the impact of the motorcycle, while the body s inertia caused it, relatively speaking, to move forward. It was, he said, the reverse of a normal rear end so called whiplash injury and that it would cause a friction injury of the spine. [17] This injury was, in his opinion, the direct cause of the pain that Mr Van Rhyn experienced. He stated that the lower back pain experienced by Mr Van Rhyn when he stands for protracted periods, sits in uncomfortable chairs and drives for long distances is consistent with what he termed this mechanical back pain. [18] Dr Forgus confirmed the contents of his report, which, in any event, were not in dispute. The opinion he expressed in it serves as a good summary of his findings. It reads as follows: The man suffered soft tissue injuries of moderate severity to his cervical and lumbar spine regions on the 07.06.03 with the lumbar spine having been the site of pre existing degenerative and congenial Spondylolysis with grade 1 Spondylolisthesis. He has in my opinion not received adequate, concerted, dedicated treatment to either zone, though his symptoms arising from his cervical spine are of a minor degree at present. A short course of physiotherapy directed at his neck i.e. some 10 days on a daily basis would totally relieve him of his present symptoms of crepitus and creaking. In private such a course of treatment would cost R2 200.00. No surgical treatment is indicated. With regard to his lumbar spine, this has been flared up by the effects of the road traffic accident on the 07.06.03 and requires more intensive treatment in the form of;

8 A) Wearing of a lumbar sacral support (Medico Corset) for some 3 months. B) Provision of anti inflammatory and analgesic medication for at least 3 months. In private an amount of R1 200.00 should be allocated for such medication. C) Intensive physiotherapy, initially over a period of 3 weeks on a daily basis at a cost of R4 400.00 if obtained in private to be followed by further courses at 6 monthly intervals for the next 2 years with the subsequent courses running over 10 days each at a cost of R2 200.00 per course. No surgical treatment is indicated. The original injuries would have occasioned pain of an intensely severe degree for some 7 to 10 days diminishing over the next 3 to 4 weeks to his present level of pain, discomfort and disability. Neither his anticipated life span not his career span have been adversely affected by the injuries sustained. If I can be of any further assistance, do not hesitate to contact me. [19] Dr Forgus was hardly cross examined: two inconsequential questions which placed nothing in issue were put to him. [20] The magistrate, in her judgment, accepted the evidence of Mr Van Rhyn and Dr Forgus. She noted too that the correctness of the report of Dr F. E. De Villiers, Mr Van Rhyn s personal doctor, was admitted by the Fund. (Despite the fact that Dr Forgus was only asked two questions in cross examination, the correctness of his report was not admitted by the RAF.) [21] The magistrate accepted that Mr Van Rhyn had suffered no permanent disablement and that neither his life expectancy nor the duration of his career had been negatively affected by the accident. After stating that the prolonged discomfort that he experienced appeared to be connected to inappropriate medical treatment, she found that the level of stress plaintiff experienced in

9 the workplace and the limitations of his working environment make it impossible to avoid all situations which trigger the symptoms he describes. [22] Taking all of the facts into account, she concluded that an award of R60 000.00 in respect of general damages was warranted. (b) Mrs Van Rhyn [23] Mrs Van Rhyn, a 49 year old woman at the time of the trial, was a passenger in the car when the accident occurred. She gave assistance to the motorcyclist immediately after the accident and appears to have remained admirably calm in what must have been a most traumatic situation. Her evidence of the events of 7 June 2003 was, in all material respects, on all fours with the evidence given by Mr Van Rhyn. [24] She testified that when the collision occurred, she had been wearing her seat belt but had, nonetheless, been forced forward by the impact. Immediately after the collision she experienced pain in her neck and stiffness in her shoulders. Later the pain and stiffness moved down into her lower back. She was given medication to treat these problems soon after the accident and was later treated by a chiropractor on two occasions. She also made use of painkillers. When she was asked what the current position was, she said: Tans sukkel ek vreeslik met hoofpyn. Ek kry nog rugpyn veral as ek gebukkend staan vir ʼn ruk; as ek met my motor ry wat ek nooit voorheen gehad het nie. She explained that the pain affected her when she did everyday chores like cooking, her hobbies, needlework and gardening, and when she drove long distances, such as from Uitenhage to Jeffrey s Bay or to Kirkwood, to visit her elderly parents, which she does twice a week. She stated that she

10 experienced pain even when she was a passenger in a car travelling a long distance. [25] On average, she said, she experienced back pains two or three times a week and headaches three or four times a week. She had suffered from neither before the accident. [26] When asked of the psychological after effects of the accident, she said: Ja, weet u met tye, dit is iets wat altyd maar by jou sal bly; jy sien nog die motorfiets aankom en daar is niks wat jy kan doen nie. So ek dink dit is maar iets wat altyd by jou sal bly. [27] Dr Forgus testified in support of Mrs Van Rhyn s claim. He explained her symptoms as follows: All these ancillary systems, the posterior headaches; pain behind the eyeballs; pain radiating across shoulders or a feeling of lameness in the arms, and as later pain going down between the shoulder blades at the back are a common association with a so called whiplash injury of the neck, with a so called flexion extension or soft tissue injury of the neck. It s well documented in all reports. Incidence of the headaches vary from 40% of individuals to 75% of individuals, depending on the survey and which country it s been taken. But it s a very common association with soft tissue injuries. He described her injuries as soft tissue injuries of moderate severity to the cervical and lumbar regions. [28] After dealing in some detail with the nature and severity of Mrs van Rhyn s injuries, and after discussing a number of cases on quantum, the magistrate summarised the gist of her factual findings thus: The evidence in the matter at hand is that vigorous treatment will resolve her

11 symptoms. No surgical intervention is required and her life expectancy is unaffected. The original injuries would have occasioned pain of moderate severity for 2 3 weeks diminishing over the following 2 weeks to the present level of pain and discomfort which is easily resolved with over the counter medication. The fact that plaintiff is a home executive does not diminish the fact that she has to adjust her normal routine if she needs to take medication and then lie down for a period. Her previously pain free existence is now interspersed with regular bouts of pain, albeit not severe. On several occasions per week she is inconvenienced with some or other pain which was preciously foreign to her. [29] The magistrate then awarded Mrs Van Rhyn general damages of R50 000.00. (c) The Test on Appeal [30] Determining quantum for general damages is certainly not an exact science. This is so because although the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express that one in terms of the other with any approach to certainty. 1 A trial court is required, in the exercise of a wide discretion, to award what it in the particular circumstances considers to be a fair and adequate compensation to the injured party for his or her bodily injuries and their sequelae. 2 [31] In the exercise of that broad discretion the trial court must: consider a 1 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194, 199. 2 AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A), 809B.

12 broad spectrum of facts and circumstances connected to the plaintiff and the injuries suffered by him or her, including their nature, permanence, severity and impact on his or her life; take into account the tendency for awards now to be higher than they once were, as a result of changing values in our society, improvements in the standard of living and the fact that awards have traditionally been lower in this country than in many others; and allow itself to be guided by the broad patterns of awards made by courts in the past. 3 [32] Flowing from this discretionary and imprecise nature of determining quantum, a court of appeal s powers of interference are limited. It may only interfere if there is an irregularity or a misdirection on the part of the trial court, if no sound basis is to be found for the quantum of damages awarded by the trial court or if there is a substantial or striking disparity between what was awarded and what ought, in the court of appeal s opinion, to have been awarded. 4 [33] In my view, none of these grounds for interference are present in either of the cases of Mr or Mrs Van Rhyn. The magistrate has not misdirected herself on the facts, she has considered the relevant case law which, by the very nature of the discretion that she was required to exercise, could be nothing more than a rough guide and she concluded, with reference to the serious dislocation and, to put it at its lowest, inconvenience, experienced by both Mr and Mrs Van Rhyn in their everyday professional and personal lives that awards of R60 000.00 and R50 000.00 respectively were justified. 3 Road Accident Fund v Marunga 2003 (5) SA 164 (SCA), paras 23 25, 27 29; Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A); Wright v Multilateral Vehicle Accident Fund reported in Corbett and Honey The Quantum of Damages in Bodily and Fatal Injury Cases (Vol 4) Cape Town, Juta and Co: 1992, E3 31. 4 See Erasmus, Gauntlett and Visser Damages in Joubert (ed) Laws of South Africa (First Re Issue) (Vol 7) Durban, Butterworths: 1995, 89 (para 117). See too Commercial Union Insurance Co of South Africa and another v Stanley 1973 (1) SA 699 (A), 703F H; AA Mutual Insurance Association Ltd v Maqula supra, 809 B D.

13 [34] I can find no fault either with how the magistrate arrived at her conclusions in each case or with the end result: even if it could be said that she erred on the side of generosity the awards can certainly not be categorised as being strikingly disparate from what I, sitting as a trial court, would have awarded. As a result the appeals, in respect of quantum, must fail. I now turn to consider the appeals against the costs orders. [C] COSTS [35] In both the actions of Mr Van Rhyn and of Mrs Van Rhyn, the magistrate ordered the Fund to pay the costs of the plaintiffs, on a party and party scale, including attendance of the necessary experts Dr De Villiers and Mr Forgus, and costs of counsel, such costs to be taxed on a higher scale within the discretion of the Taxing Mistress as provided for in item 26(b) and (c) of Annexure 2, Part IV, Table A. [36] The appeals against the costs orders are directed only against those parts of the orders that concern the costs of counsel, it having been accepted by the Fund, wisely, I venture to suggest, that the plaintiffs were entitled to the costs of the attendance of their expert witnesses. [37] From her reasons in terms of rule 51(8) of the Magistrates Courts Rules, it appears that the magistrate took into account for purposes of making the costs order that, in her experience, it was not unusual for both sides to brief counsel in matters such as these, as attorneys generally do no have time to do the necessary research to prepare for trial, that the claims were for substantial amounts, that Mr and Mrs Van Rhyn both succeeded in their actions to a large degree, that the matters involved the examination and

14 cross examination of medical experts and that normally party and party costs orders in respect of counsel would suffice. [38] She then continued to say, and this is the crux of her decision: 5 Section 48(d) of the Magistrates Courts Act 32 of 1944 however allows a magistrate the discretion to award costs as may be just. Whilst it is understandable that, the parties being unable to reach a compromise, the appellant would wish to argue the quantum in an instance such as this, tactics such as a delayed concession of the merits of the action, the last minute concession allowing the reports of a medico legal nature, from reputable practitioners, to be handed in as evidence, and the superficial cross examination of expert witnesses which does not elicit any information of assistance to the court in determining the issues, is viewed in a dim light. It is a view made clear to appellant in many other matters in which they were a litigant and in which Mr Dala also appeared as counsel. [39] Her intention in making the costs orders was, she said, to mark her disapproval of the manner in which the matters were handled by the Fund. She pointed out, however, that the costs orders were not open ended in the sense that the taxing master/mistress must exercise a discretion and be satisfied that the fee in question is reasonable in the circumstances. This being so, she was of the view that the costs orders did not burden the Fund with the costs of extravagant or luxurious litigation. She stated that the object of the costs orders was also to indemnify Mr and Mrs van Rhyn for the reasonable expenses that they were obliged to incur in order to pursue their claims properly. 5 The passage quoted was taken from the rule 51(8) notice in Mrs Van Rhyn s case but exactly the same is said in the rule 51(8) notice in Mr Van Rhyn s case.

15 [40] It appears from the record that it is indeed so that it was only at a late stage that the reports of Dr De Villiers and Dr Forgus were admitted. Counsel for the Fund put on record that his attitude was that, as far as general damages were concerned, the onus rested on Mr and Mrs Van Rhyn to prove their claims and that he required them to do so. [41] When Mr and Mrs Van Rhyn testified they can hardly be said to have been cross examined with any intensity: Mr Van Rhyn s cross examination took a mere six pages of the record, while Mrs van Rhyn s cross examination took up two pages but a page of that concerned an altercation between counsel for Mrs van Rhyn and for the Fund. Her cross examination was entirely inconsequential and contributed nothing to the case, one way or the other. Dr Forgus was led in both cases. In Mr Van Rhyn s case, his crossexamination took up six lines of the record and was entirely inconsequential. In Mrs Van Rhyn s case his cross examination took up 19 lines of the record and was equally inconsequential. [42] I conclude from the facts that I have recorded above that the magistrate had a proper basis for her dissatisfied with the manner in which the matters were conducted by the Fund. [43] It is not placed in dispute by the Fund that the magistrate had the power to make the costs orders that she made. It is clear that she had this power: Section 48(d) of the Magistrates Courts Act, referred to specifically by the magistrate in her rule 51(8) notices, provides that a magistrate may as a result of the trial of an action grant such judgment as to costs as may be just. 6 Instead, the Fund s argument is that the costs orders are arbitrary in 6 See too Rule 33 (1) of the Magistrates Courts Rules and Road Accident Fund v Forbes

16 the sense that inadequate reasons support them, and they are not justified on the facts because nothing renders these maters extraordinary. [44] Appeals against costs orders, like appeals against quantum, concern the exercise of discretionary powers vested in trial courts. As a result, a court of appeal will be slow to interfere with the exercise of the trial court s discretion and will only do so if it is shown that the trial court failed to exercise that discretion judicially. 7 If a costs order is arbitrary, it follows that it could not be said that the trial court exercised a judicial discretion in making that costs order. In Road Accident Fund v Forbes 8, Jones J, with reference to a costs order, defined an arbitrary decision as one that is capricious, variable, uncertain, an unrestrained exercise of personal whim without reference to any sensible or relevant criteria. [45] Can any of these epithets be used to describe the making of the costs orders in this matter? I am of the view that no case is made out that the costs orders were arbitrary or otherwise unjustified. The magistrate has given full and sound reasons for making the costs orders. She has taken into account matters that are relevant to the exercise of her discretion, including the nature of the claims, the amounts involved and the way in which the Fund conducted the litigation (using, it must be said, public funds). She considered the extent to which her displeasure should be shown and struck, in my view, a proper balance between the interests of Mr and Mrs Van Rhyn, on the one hand, and of the Fund, on the other. I conclude that there is, accordingly, no basis for interference with the costs orders, and this aspect of the appeals must also fail. ECD 28 September 2006 (case no. CA 197/05) unreported, para 4. 7 Merber v Merber 1948 (1) SA 446 (A), 452 453; Cronje v Pelser 1967 (2) SA 589 (A), 592H. 8 Supra, para 5.

17 [D] THE RESULT [46] For the reasons set out in this judgment the appeals in both case number 403/05 and case number 405/05 are dismissed with costs. C. PLASKET JUDGE OF THE HIGH COURT I agree. R.J.W. JONES JUDGE OF THE HIGH COURT