THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no:  144/2002

In the matter between:

ROAD ACCIDENT FUND
Appellant

and

AZWINDINI MARUNGA
Respondent

_______________________________________________________

Coram:
Marais, Navsa JJA and Heher AJA

Date of hearing: 11 March 2003

Date of delivery: 26 March 2003

Summary:
Award of general damages in personal injury claim   references to
past awards   interference by court of appeal   inadequate
motivation by trial court and striking disparity between amount
awarded by trial court and amount considered appropriate.

_______________________________________________________

JUDGMENT
_______________________________________________________

NAVSA JA:
[1] This is an appeal, with the leave of this Court, against an order
of the Venda High Court (Hetisani J) on 6 September 2001, in terms
of which the appellant ('the RAF'), a statutory insurer established and
constituted by the Road Accident Fund Act 56 of 1996, was required
to pay the respondent an amount of R375 000-00 as general
damages (subject to a 60% reduction by apportionment) flowing from
bodily injuries sustained by the respondent in a collision on 8 April
1993 at Cherenzeni in Venda between a motor vehicle driven by an
insured driver and the respondent's bicycle. The Court below made
no order in respect of costs.
[2] The Court below was called upon to determine only the
quantum of damages suffered by the respondent, including loss of
income and medical expenses. The only issue before us is the
correctness of the determination of the amount of R375 000-00 as
general damages.
[3] The RAF contends that the amount awarded as general
damages by the Court below is excessive and that whatever the
result of the injuries the amount of damages awarded cannot be

justified by reference to comparable decided cases or on any other
basis.
[4] The respondent contends that the features of the present case
are exceptional and distinctive and that the amount awarded as
general damages by the Court below is fair and reasonable in the
circumstances
[5] In order to decide the present appeal the following deserve
consideration:
(a)
the physical injuries sustained by the respondent and their
consequences;
(b)
the treatment received by the respondent and his experiences
flowing from the injuries and their consequences;
(c)
evidence by the two orthopaedic surgeons who examined the

respondent including their prognoses in respect of the injury to

the respondent's left leg;
(d)
the judgment in the Court below.
[6] It is common cause that as a result of the collision the
respondent sustained the following injuries:
(i)
a fracture of the left femur;
(ii)
a soft tissue injury in the chest area;

(iii)
bruises on the forehead, left arm and left knee;
[7] It is common cause that the respondent received treatment,
attended at hospitals and was subjected to surgical procedures as
described in this and the following paragraph. On 9 April 1993, the
day after the collision, the respondent was subjected to a surgical
procedure in terms of which a plate and screws were inserted in his
left leg in order to deal with the fracture of the left femur. He spent
five months in hospital recuperating, approximately two of which were
spent with his left leg in traction and in plaster.
[8] After his discharge from hospital the respondent was compelled
to use crutches as a walking aid for approximately five months.
During 1997 he was re-admitted to hospital for the surgical removal of
the plate and screws. As it turned out the plate had moved and
caused a mal-union and angulation of the femur that resulted in a
shortening of the respondent's left leg. The respondent spent two
weeks in hospital after the plate and all but one of the screws were
removed. He attended different hospitals at intervals for a period of
approximately four years for treatment of the injuries sustained in the
collision. The visits were not all fruitful in that the treatment envisaged
did not always materialise.

[9] The appellant's personal circumstances and his experiences
following on the collision as set out in this and the following
paragraph are not in dispute. At the time of the collision he was 19-
years old and in grade 11. As a result of the collision the respondent
did not complete the 1993 school year. He returned to school in 1994
but that year was interrupted by several visits to the hospital. He
finally completed grade 11 in 1995 and matriculated in 1997. After
matriculating the respondent completed a diploma, which would
benefit him in a career in the travel industry. He was due to complete
a computer course that would enable him to embark on such a
career.
[10] Before the collision the respondent was a keen soccer and
volleyball player. As a result of the injuries sustained by him he is
unable to participate in these sports. The respondent experiences
difficulty in lifting objects and cannot remain standing for long periods.
His movements are restricted because of the injury to his left leg. He
experiences pain in his leg when he walks long distances. From the
time of the collision until 1995 he experienced pain in his chest area.
The pain attendant upon the surgical procedures and relating to his
leg will be dealt with in due course.

[11] I turn to deal with the material parts of the evidence of the
orthopaedic surgeons. Dr Lesibana Ledwaba ('Dr L') is an
orthopaedic surgeon who testified in support of the respondent's
case. Dr L confirmed that the respondent walks with a short limb gait
and stated that there was no evidence that he presently experienced
pain whilst walking short distances. He testified that the 20 cm
surgical scar on the respondent’s left leg, which is clearly visible, was
not tender and appeared completely healed. The fracture itself had
healed.
[12] In so far as the leg-length deformity is concerned, Dr L was of
the view that it could be corrected by further surgery and that the
chances of success were more than 80%. This surgical procedure
would involve breaking the femur and resetting it. Complicating
factors are that the bone and muscle have settled into their present
position and have been like that for a relatively long period of time. Dr
L could not state positively that the respondent's legs would
eventually be of the same length. He was of the view that in the event
of the corrective surgery being successful the respondent would be
able to perform 80% of the functions he was able to perform before

the collision. His left leg would however, never be the same as
before.
[13] After corrective surgery there would be the need for further
surgery to remove the implant used to set the femur in position.
According to Dr L the implant would have to be removed to prevent it
from being an irritant. A further factor is that the implant tends to
absorb part of the body weight rendering the bone susceptible to
fracture. The removal of the implant would cause severe pain and
discomfort for a period of five to ten days and the respondent would
thereafter suffer moderate pain for a period of six weeks, during
which period he would limp and would require the use of crutches.
Thereafter the respondent would experience mild pain until he walked
normally in approximately sixteen weeks' time.
[14] Dr L referred to an X-ray photograph, which showed that there
had been a failure to remove a screw inserted in the left leg in one of
the previous surgical procedures. His view was that the screw should
not be removed because any attempt to do so might result in
complications or further damage.
[15] Dr André Vlok ('Dr V') testified in support of the RAF's case and
agreed that the respondent's left leg was weaker than his right leg.

He found the left leg 3.5 cm shorter than the right leg. He confirmed
the need for corrective surgery and agreed that the chances of
success were high. He too testified that the left leg would never revert
to its pre-collision length and held the view that after corrective
surgery the left leg would probably be 1-1.5 cm shorter than the right
leg. He envisaged the use of a built-up shoe to compensate for this.
[16] Dr V testified that the question of whether the implant
envisaged in the resetting of the femur should be removed was open
to debate. He conceded however, that since the respondent was
young and since patients were prone to discomfort in inclement
weather it was reasonable to remove the implant.
[17] Dr V agreed that the screw not removed during the second
surgical procedure should be left untouched, as it was highly unlikely
that the screw would cause future discomfort.
[18] Dr V was of the view that after corrective surgery the
respondent would take between three to four months to recover and
that he would experience acute pain for approximately three days
after the surgery. Dr V considered that after the first surgical
procedure the respondent would have suffered acute pain for two
weeks before it settled. He would thereafter have experienced

moderate pain for four to five weeks. Dr V agreed that even after
corrective surgery the respondent would not be able to do heavy
physical labour. He would, however, be able to perform moderate
physical tasks. In respect of corrective surgery Dr V testified that
there is a 0.9% chance of infection and a 2.3% chance of a non-
union.
[19] The brief overview of the evidence of the two orthopaedic
surgeons shows that the only material disagreement is about the
need for the removal of the implant to be inserted as part of the
envisaged corrective surgery procedure. Dr V did however concede
that it was not unreasonable that the implant be removed. Before us
counsel for the RAF accepted the need for surgery to remove the
implant and conceded that it was a factor to be considered in the
assessment of general damages.
[20] I turn to deal with the manner in which the learned judge in the
Court below determined the amount he awarded as general
damages. In his judgment he accepted that the main injury sustained
by the respondent was the fracture of the left femur. He referred to
the need for corrective surgery and the envisaged removal of the
implant. He referred to the disfigurement in the form of the

respondent's shortened left leg. He recognised that the respondent
endured pain and that he will experience pain and discomfort in the
future.
[21] The learned judge listed previously decided cases in which
awards were made and to which he was referred by counsel as being
comparable. He stated that the submission by counsel for the
respondent that the awards made in those cases should be multiplied
by three or four in order to do justice to the facts of the present case
was unsubstantiated. He went on to say the following (immediately
before stating the amounts he was awarding under separate heads of
damages):
'Despite any rebuttal of the plaintiff's argument through decided case law,
plaintiff maintains that the defendant's case is hopeless when it comes to the
determination of the quantum which would form an award in favour of the
plaintiff.'
[22] The learned judge did not state whether he found any of the
cases useful. He did not state which factors weighed most heavily
with him in determining the quantum of general damages. The
statement from the judgment quoted at the end of the preceding
paragraph is unclear and unhelpful. The submission by counsel for
the RAF that in effect no reasons were supplied for the quantification

arrived at appears well founded. This is an aspect to which I will
return later in this judgment.
[23] This Court has repeatedly stated that in cases in which the
question of general damages comprising pain and suffering,
disfigurement, permanent disability and loss of amenities of life arises
a trial court in considering all the facts and circumstances of a case
has a wide discretion to award what it considers to be fair and
adequate compensation to the injured party. This Court will interfere
where there is a striking disparity between what the trial court
awarded and what this Court considers ought to have been awarded:
See Protea Insurance Company v Lamb 1971 (1) SA 530 (A) at
535A-B and the other cases cited there.
[24] At 535B and following of the Protea case Potgieter JA
considered what regard should be given to awards in previously
decided cases. After considering dicta in several decisions of this
Court the learned judge of appeal stated that there was no hard and
fast rule of general application requiring a trial court or a court of
appeal to consider past awards. He pointed out that it would be
difficult to find a case on all fours with the one being heard but

nevertheless concluded that awards in decided cases might be of
some use and guidance.
[25] In the Protea case, above, this Court in determining the
measure
of
damages
considered
all
relevant
factors
and
circumstances and derived assistance from the 'general pattern of
previous awards'.
[26] The following case (with synopsis) which was included in the
list of cases to which the trial Court was referred for purposes of
comparison, demonstrates the difficulty and (paradoxically) the
usefulness of considering awards in previously decided cases:
Wright v Multilateral Vehicle Accident Fund a 1997 decision of the
Natal Provincial Division   Corbett and Honey Vol 4 E3-31  The
plaintiff, a 28-year old woman, sustained a open comminuted fracture of the right
femur with complete division of the quadriceps muscle and loss of substantial
quantity of bone which extended into the knee joint. There was an initial surgical
procedure to repair the quadriceps mechanism and to apply an external fixator
plaintiff hospitalised for two weeks and discharged on crutches. Readmitted two
weeks later for treatment of infection. Later readmitted for a period of one week
for further treatment for infection. At the same time the external fixator was
removed and replaced with a pin. Traction applied at home for four weeks. The
fracture failed to unite and the plaintiff was again hospitalised for a few weeks

during which an open reduction was carried out for an internal fixation. The
plaintiff wore a leg brace with a hinge for several weeks and left with a limitation
of flexion in her right knee, bad scarring of the right leg, a shortening of the leg by
3½ cm requiring raisers in footwear. She experienced weakness of the leg,
residual pain and recurring infections and abscesses, which would in future
probably require antibiotic therapy and surgical drainage. Removal of the pin was
expected. Plaintiff experienced a great deal of pain, particularly during episodes
of infection. She had been an outdoors person but was now permanently unable
to run or play sport, kneel or squat. She experienced difficulty in negotiating
stairs- awarded R65 000-00 as general damages [value in 2001 (at time of trial in
the present case)   R81 000-00].
[27] In the Wright case (Corbett and Honey Vol 4 E3-36) Broome
DJP stated:
'I consider that when having regard to previous awards one must
recognise that there is a tendency for awards now to be higher than they were in
the past. I believe this to be a natural reflection of the changes in society, the
recognition of greater individual freedom and opportunity, rising standards of
living and the recognition that our awards in the past have been significantly
lower than those in most other countries.'
[28] The Wright case at E3-34 to E3-37 is instructive. The learned
trial judge considered all the relevant circumstances and set out in
detail the reasoning that motivated the award.

[29] Distilled from the undisputed facts referred to earlier in this
judgment are the following salient features. The respondent is a
young man in his twenties who over and above the surgical
procedures that he has already been subjected to, will have to endure
two further procedures. The degree of pain and discomfort attendant
upon these surgical procedures and the consequences of the injuries
have been set out in some detail in paragraphs [7]-[18]. The
respondent's mobility was totally and partially impaired for substantial
periods and he will be rendered immobile when the envisaged
surgical procedures are performed in future. He spent four years
attending at hospitals to receive treatment. This was a major
disruption in his life. His enjoyment of life must have been severely
curtailed by the travelling to and from the hospitals with the
discomfort caused by the condition of his left leg. This was at a time
in his life when he ought to have been in the full bloom of youth.
Furthermore at the time of trial a period of approximately eight years
had passed since the collision, only four of which did not include the
trauma of surgical intervention. The bone and muscle in the
respondent's left leg have settled into their deformed position. The
respondent after a period of relative calm in his life now faces the

prospect of repeated future traumatic surgical intervention. This is an
important factor to be taken into account in favour of the respondent.
With the envisaged corrective surgery the discomfort of walking with
a shortened leg will be alleviated but will never disappear. His
disfigurement is permanent. The respondent has suffered a
permanent 20% loss of power in his left leg. His mobility has been
permanently restricted. He will be unable to lift heavy objects. He is a
sports lover who was an active sportsman and who is now unable to
play sport. The extensive surgical scar on his left leg is obvious. In so
far as the corrective surgery is concerned, even though the risk of
non-union of the femur and infection is small it cannot be discounted
altogether.
[30] The Wright case is in the broadest terms close to the facts of
the present case. The respondent in the present case is however
nine years younger than the plaintiff in the Wright case. This is a
consideration that should count in his favour. He lost the full use of
his left leg in the full bloom of his youth and will have to endure the
discomfort of walking with a shortened, less powerful leg for the
remainder of his life.

[31] Before considering whether the amount awarded by the trial
court should be upset on appeal I return to an aspect touched on
briefly earlier in this judgment, namely, the lack of a reasoned basis
for the determination of general damages. As a general rule a court
which delivers a final judgment is obliged to give reasons for its
decisions. In an article in the The South African Law Journal
(vol 115   1998 pp 116-128) entitled Writing a Judgment the former
Chief Justice, MM Corbett, pointed out that this general rule applies
to both civil and criminal cases. In civil cases this is not a statutory
rule but one of practice. The learned author referred to Botes &
another v Nedbank Ltd 1983 (3) SA 27 (A) where this Court held that
in an opposed matter where the issues have been argued litigants
are entitled to be informed of the reasons for the judge's decision. It
was pointed out that a reasoned judgment may well discourage an
appeal by the loser and that the failure to supply reasons may have
the opposite effect, that is, to encourage an ill-founded appeal. The
learned author stated the following at 117:
'In addition, should the matter be taken on appeal, the court of appeal has
a similar interest in knowing why the judge who heard the matter made the order
which he did. But there are broader considerations as well. In my view, it is in the
interests of the open and proper administration of justice that the courts state

publicly the reasons for their decisions. Whether or not members of the general
public are interested in a particular case   and quite often they are   a statement
of reasons gives some assurance that the court gave due consideration to the
matter and did not act arbitrarily. This is important in the maintenance of public
confidence in the administration of justice.'
[32] Writing on the same subject in The Australian Law Journal
(vol 67 A 1993) pp 494-502 the former Chief Justice of the High Court
of Australia The Rt Hon Sir Harry Gibbs, considering the same rule of
practice in common law countries, stated the following at 494:
'The citizens of a modern democracy   at any rate in Australia   are not
prepared to accept a decision simply because it has been pronounced, but rather
are inclined to question and criticise any exercise of authority, judicial or
otherwise. In such a society it is of particular importance that the parties to
litigation   and the public   should be convinced that justice has been done, or
at least that an honest, careful and conscientious effort has been made to do
justice, in any particular case, and the delivery of reasons is part of the process
which has that end in view.'
[33] This is of course not a case in which no attempt has been made
to provide reasons for judgment. It is a case in which the attempt has
been inadequate. Even though courts have a wide discretion to
determine general damages and even though it cannot be described
as an exercise in exactitude, or be arrived at according to known

formulae, a trial court should at the very least state the factors and
circumstances it considers important in the assessment of damages.
It should provide a reasoned basis for arriving at its conclusions.
Regrettably, although the Court below stated the main injury
sustained by the respondent and set out the envisaged corrective and
further surgery it did not set out adequate motivation for the amount
determined as damages.
[34] Having considered all the factors and circumstances relevant to
the assessment of damages referred to earlier in this judgment and
considering past awards and taking into account the more modern
approach to the award of damages as set out in the passage in the
Wright judgment referred to in para [27] I consider an amount of R175
000-00 an appropriate award of damages. I do not consider it
necessary to set out separate amounts in respect of pain,
disfigurement, loss of amenities, etc. Since this amount differs so
radically from the amount awarded by the Court below and in the light
of that court's failure to properly motivate the award this Court is
entitled to interfere and upset that determination.

[35] In light of the foregoing it follows that the appeal should
succeed. Regrettably the costs of litigation will impact negatively on
the amount awarded to the respondent.
[36] I make the following order:
1.
The appeal is upheld with costs;
2.
Paragraph 5 of the order of the Court below is amended only to
the following extent:
The amount of R375 000-00 (three hundred and seventy five
thousand) is substituted by the amount of R175 000-00 (one
hundred and seventy five thousand).

__________________
MS NAVSA
JUDGE OF APPEAL

CONCUR:

Marais
JA
Heher
AJA