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[2011] ZAGPJHC 6
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Noble v Road Accident Fund (39254/2008) [2011] ZAGPJHC 6 (24 February 2011)
IN THE SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE No. 39254/2008
DATE:
24/02/2011
Reportable
in the electronic law reports only
In the matter between:
ELBON
ASHLEY NOBLE
.
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGEMENT
1.
WILLIS J:
1.
[1] The plaintiff claims from the defendant
in terms of the provisions of the
Road Accident Fund Act, No.56 of
1996
. The claim arises from a motor vehicle collision which occurred
on 18 September 2005. The plaintiff was the driver of a motor
cycle having registration letters and number HSJ 030 GP. The
collision occurred between that motor cycle and a truck having
registration
letters and number PDC 800 GP. The truck was driven at
the time by Mr Tolotolo Nzimeni (“the insured driver”).
The
parties settled the merits of the plaintiff’s claim on the
basis that the defendant would pay the plaintiff 100% of his proven
damages. The plaintiff sustained serious multiple injuries which
included including a large number of fractures which necessitating
complex surgery. The plaintiff also suffered a brain injury with
neuropsychological and neuropsychiatric
sequelae
.
2.
[2] The parties have settled the merits of
the case such that the defendant would be liable to pay the plaintiff
100% of his proven
damages. In order to resolve the
quantum
of damages, the parties have prepared a stated case for determination
by the court in terms of
Rule 33.
The main issue for
determination in the stated case relates to whether or not insurance
benefits and more particularly disability
benefit paid to the
plaintiff falls to be deducted from the plaintiff’s otherwise
agreed damages. The other issues relating
to damages have largely
been settled although I have been left with a discretion to determine
the quantum of general damages.
3.
[3] The parties have agreed to the
following facts in terms of the stated case:
4.
(i) The plaintiff, Elbon Ashley Noble, is
an adult male born on 30 April 1974.
5.
(ii) The plaintiff was seriously injured on
18 September 2005 whilst he, as the rider of a motorcycle was
involved in a collision
with a truck on the old Meyerton Kliprivier
Road.
6.
(iii) As a result of the collision,
the plaintiff inter alia sustained the following injuries:
1.1.1
a) A head and brain injury resulting in the
plaintiff suffering from a reduced cognitive ability, an altered
personality and resultant
mood disorders;
b) A fracture of his
right femur complicated by a 2.9cm shortening of his right leg, along
with a 20 to 25° rotational deformity;
c) A fractured right
tibia rendering ongoing pain and difficulties with his right ankle
and right foot with significant scarring;
d)
A fracture of his right fibula similarly
resulting in extensive scarring and deformity;
A fractured right foot
with scarring including a malunion of some of the metatarsal bones of
the foot;
A fractured right patella
with extensive scarring of which the Kirchner and Cerclage wires
broke some time following the corrective
surgery which the plaintiff
underwent;
A fractured left patella
with associated scarring and knee pain and similarly requiring future
corrective surgery which would likely
result in a total knee
replacement;
Fractures of his right
hand for which he similarly received an operation and requires
further surgery;
Scarring of his right
thigh as a result of skin grafts taken from that area to his right
lower leg;
A soft tissue spinal
injury rendering chronic neck pain and cervicogenic headaches;
Lower
back pain which is associated with the shortening of the plaintiff
’
s
right leg.
7.
8.
[4] The plaintiff’s claim in
respect of past medical expenses and past hospital expenses have been
paid.
9.
[5] In respect of the plaintiff’s
future medical and related expenses, the defendant has agreed to
furnish the plaintiff
with an undertaking as contemplated in
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
in respect of the
costs of his future accommodation in a hospital or nursing home, or
for the treatment of or rendering of a service
or the supplying of
goods to him, arising from the injuries sustained by him in the
aforesaid motor vehicle, after such costs have
been incurred and upon
proof thereof.
10.
[6] At the time of the accident, the
plaintiff was contracted to Ntuli Noble Incorporated Attorneys and
earned an amount of R15 000.00
per month. (R180 000.00
per annum as at the time of the accident).
11.
[7] But for the accident and its
consequences the parties have agreed that the plaintiff’s
income would have increased from
the time of the accident uniformly
to a total package of R382 825.00 per annum as at 1 March 2011
which is equivalent to the
average of the Paterson C4 and C5 levels
increased with inflation from 1 April 2009 to the present time.
The parties are
agreed that the plaintiff would have retired at the
age of 65.
12.
[8] The parties are agreed that the
plaintiff has not been working since the accident and will not be
capable of working in
future.
13.
[9] The parties have agreed that plaintiff
would have earned an income from the time of the accident to the
present time of R1 239 025.00
from which the parties have
agreed to deduct a 5% contingency deduction, rendering a past/accrued
loss of R1 177 074.00.
14.
[10] The parties have agreed that the
plaintiff will in future suffer a loss of earnings (a prospective
loss) of R4 866 566.00
to which the parties have agreed
that a 15% contingency deduction should be applied, rendering a net
future income in the sum of
R4 136 581.00.
15.
[11] The plaintiff had taken out a Liberty
Life insurance policy which inter alia entitled him to monthly
disability payments in
the event of his becoming disabled.
16.
[12] In terms of the Liberty Life insurance
policy, the plaintiff received monthly insurance payments in the sum
of R667 437.00
during the period calculated from the date of the
accident to the present time.
17.
[13] The plaintiff will, in the event of
the insurance payments continuing into the future, receive monthly
insurance payments totalling
a capitalised value of R2 715 923.00
(having applied an agreed contingency deduction).
18.
[14] The plaintiff contends that the
Liberty insurance benefits received by the plaintiff and those
insurance benefits which the
plaintiff may in future receive from the
Liberty insurance policy ought not be deducted from the damages to
which he is entitled
following his injuries sustained in the
accident.
19.
[15] The plaintiff accordingly contends
that he should be awarded an award in respect of his past loss of
earnings in the sum of
R1 177 074.00 and R4 136 581.00
in respect of his future loss of earnings.
20.
[16] The defendant contends that the
insurance payments received by the plaintiff and the insurance
payments which the plaintiff
may receive in future (referred to in
paragraph 13 above) ought to be deducted from the plaintiff’s
past and future loss
of earnings.
21.
[17] The plaintiff’s total loss of
earnings as a result of the accident, its aftermath and his resultant
inability to work
amounts to the capitalised sum of R5 313 655.00,
calculated on the basis that the plaintiff’s past/accrued loss
of earnings after making an agreed 5% contingency deduction would be
R1 177 074.00 and the plaintiff’s future/prospective
loss with an agreed 15% contingency deduction would be R4 136 581.00.
22.
[18] From this amount of R4 136 581.00,
the defendant contends that the insurance benefits received and to
which the plaintiff
may in future become entitled and which it
contends ought be deducted from the plaintiff’s aforesaid loss
amounts to a sum
of R3 383 361.00 calculated by deducting
the amount of R667 437.00 which the plaintiff has received as
payments
in terms of the Liberty Life policy and R 2 715 924.00
which the plaintiff will potentially receive in future in terms
of
this policy.
23.
[19] The plaintiff accordingly contends
that the award in respect of his loss of income ought to be
R5 313 655.00. The
defendant, on the other hand, contends
that the plaintiff’s loss of income, having deducted his
insurance benefits should
amount to R1 930 294.00.
24.
[20]
The plaintiff relies on the principle that a defendant cannot rely in
mitigation of his own liability on the fact that the
plaintiff has
and will be entitled to recover wholly or in part from his insurer in
terms of a contract of insurance. It is clear
to me, having read the
cases of
Santam
Versekeringsmaatskappy Bpk v Byleveld
[1]
and
Standard
General Insurance Company Limited v Dugmore N.O.
[2]
Corbett’s
Quantum
of Damages
,
edited by Gauntlett,
[3]
that
the plaintiff must succeed. The
policy considerations of fairness favour the plaintiff rather than
the defendant benefiting from the “good fortune”
of there
having been another
bona
fide
insurance policy in terms of which the plaintiff was insured.
25.
[21] Consequently, the plaintiff is awarded
damages in respect of his past and future loss of earnings in the sum
of R5 313 655.00.
There was some disagreement among the
parties as to the appropriate award for general damages. In the end,
the parties agreed to
leave the matter in my discretion. I am
satisfied that R600 000,00 would be a fair award under this
head, in the circumstances.
26.
[22] Judgment is given in favour of the
plaintiff against the defendant as follows:
27.
1. The defendant shall pay the
plaintiff the sum of R5 913 655.00;
28.
2. The defendant shall pay the
plaintiff interest on the aforesaid sum at the rate of 15,5% per
annum calculated from a date 14
days from the date of this order;
29.
3. The defendant shall furnish the
plaintiff with an undertaking as contemplated in
section 17(4)(a)
of
the
Road Accident Fund Act, No. 56 of 1996
to compensate him for his
future accommodation in a hospital or nursing home, or for the
treatment of or rendering of a service
or the supplying of goods to
him, arising from the injuries sustained by the plaintiff (“the
patient”) in a motor vehicle
collision which occurred on 18
September 2005, after such costs have been incurred and upon proof
thereof, which costs shall include
the costs of the formation and
administration of a trust for the benefit of the plaintiff;
4.
The defendant shall pay the plaintiff’s
costs of suit on the party and party High Court scale as taxed or
agreed, which costs
shall include the qualifying, reservation and
preparation fees, if any, of the following expert witnesses:
4.1
Dr L Marais (orthopaedic surgeon);
4.2
Dr C Angus (clinical psychologist);
29.1
Ms H du Preez (occupational therapist);
4.3
Dr H J Edeling (neurosurgeon);
4.4
Mr L Marais (industrial psychologist);
4.5
Dr B Braude (psychiatrist);
29.2
Mr G Whittaker (actuary).
30.
5. It is declared that the insurance
payments received and receivable by the plaintiff do not fall to be
deducted from the plaintiff’s
loss of earnings.
DATED AT JOHANNESBURG
THIS 24TH DAY OF FEBRUARY, 2011
N.P.WILLIS
JUDGE
OF THE HIGH COURT
Counsel for the
Plaintiff:
E. Van Vuuren
Counsel for the
Defendant:
Q.H. Mabena
Attorneys for the
Plaintiff: Erasmus De Klerk Inc.
Attorneys for the
Defendant: Kekana Hlatswayo Radebe Inc.
Date of hearing: 24
February, 2011
Date of judgment: 24
February, 2011
[1]
(1973) 2 SA 146A
at 152A-D
[2]
1997 (1) SA 33
(A) at 42A-B
[3]
See Corbett
The
Quantum of Damages
Volume 1, 4th Edition, page 12