Road Accident Fund v Azwindini Marunga

On 8 April 1993, the respondent Azwindini Marunga, then a 19-year-old grade 11 student, was injured when a motor vehicle collided with his bicycle at Cherenzeni in Venda. He sustained a fracture of the left femur, soft tissue injury to the chest, and bruises on the forehead, left arm and left knee. On 9 April 1993, he underwent surgery during which a plate and screws were inserted in his left leg. He spent five months in hospital, approximately two months with his leg in traction and plaster. After discharge, he used crutches for approximately five months. In 1997, he was readmitted for surgical removal of the plate and screws, but the plate had moved causing mal-union and angulation of the femur resulting in leg shortening. All but one screw were removed. He attended different hospitals for approximately four years for treatment. As a result of the injuries, he could not complete the 1993 school year, returned in 1994 but was interrupted by hospital visits, completed grade 11 in 1995 and matriculated in 1997. Before the collision he was a keen soccer and volleyball player but can no longer participate. He experiences difficulty lifting objects, cannot stand for long periods, has restricted movement, experiences pain when walking long distances, and his left leg is permanently shorter and weaker. The Venda High Court (Hetisani J) awarded R375,000 as general damages (subject to 60% reduction by apportionment). The RAF appealed this quantum as excessive.

• Whether the award of R375,000 for general damages by the trial court was excessive
• Whether the trial court adequately motivated its award of general damages
• What principles apply when a court of appeal considers interfering with an award of general damages
• What weight should be given to awards in previously decided cases when assessing general damages
• Whether a trial court is required to give reasons for its determination of general damages

The appeal was upheld with costs. Paragraph 5 of the Venda High Court order was amended by substituting the general damages award of R375,000 with R175,000 (still subject to the 60% reduction by apportionment previously ordered).

A court of appeal will interfere with an award of general damages where there is a striking disparity between what the trial court awarded and what the appellate court considers ought to have been awarded. Even though courts have wide discretion in determining general damages and the exercise is not one of exactitude, a trial court must provide adequate reasons for its award by stating the factors and circumstances it considers important and providing a reasoned basis for its conclusions. The failure to provide adequate motivation, combined with a striking disparity in the quantum awarded, justifies appellate interference. In civil cases, courts have an obligation (as a rule of practice) to give reasons for their decisions in the interests of open and proper administration of justice and to maintain public confidence in the judiciary.

The court made non-binding observations on the role of previous awards in assessing damages, noting that while there is no hard and fast rule requiring consideration of past awards (and it is difficult to find cases on all fours), awards in decided cases may be of some use and guidance, and courts may derive assistance from the 'general pattern of previous awards'. The court also endorsed the modern approach articulated in Wright v Multilateral Vehicle Accident Fund that there is a tendency for awards to be higher than in the past, reflecting changes in society, recognition of greater individual freedom and opportunity, rising standards of living, and acknowledgment that South African awards have been significantly lower than those in most other countries. The court cited with approval academic commentary by former Chief Justice MM Corbett and former Australian Chief Justice Sir Harry Gibbs on the importance of reasoned judgments in maintaining public confidence in the administration of justice and assuring the public that courts do not act arbitrarily.

This case is significant in South African law for several reasons: (1) It reaffirms the principle from Protea Insurance Company v Lamb that appellate courts will interfere with awards of general damages where there is a striking disparity between the award and what is considered appropriate; (2) It emphasizes the obligation of trial courts to provide adequate reasons for their determinations of general damages, even though such assessments involve wide judicial discretion; (3) It confirms that while there is no hard and fast rule requiring consideration of past awards, they may provide useful guidance in assessing damages; (4) It demonstrates the modern approach to awards of general damages in South Africa, recognizing a tendency for higher awards reflecting changes in society, greater recognition of individual freedom, rising living standards, and acknowledgment that South African awards have historically been lower than other countries; (5) It establishes the importance of reasoned judgments in maintaining public confidence in the administration of justice, citing both South African and Australian authorities on judicial reasoning; (6) It provides guidance on factors relevant to assessing general damages in cases involving serious orthopedic injuries, particularly fractures requiring multiple surgeries, permanent disability, disfigurement, loss of amenities, and impact on young persons.