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[2011] ZAGPJHC 203
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Smith v Road Accident Fund (10/39870) [2011] ZAGPJHC 203 (15 December 2011)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 10/39870
(1)
REPORTABLE: YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:
SMITH,
MANUEL LOUIS
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
J
U D G M E N T
MBHA,
J
:
[1]
The plaintiff claims damages from the defendant as the
statutory insurer in terms of the Road Accident Fund Act
56 of 1996
(“
the Act
”), arising from the bodily injuries he
sustained in a motor collision that occurred on 24 April 2007 at
approximately 14h20,
at the intersection between Molokomme Street and
the Soweto Highway in the vicinity of Noordgesicht, Soweto. At the
time of the
collision the plaintiff was a pedestrian and the motor
vehicle that collided with him bearing registration numbers and
letters
VPH [....] (“
the insured vehicle
”) , was
being driven by Mr S Vilakazi (“
the insured driver
”).
It is common cause that the plaintiff sustained the following
injuries as a result of the accident:
1.1
a degloving scalp injury;
1.2
laceration above the right
eyebrow and right elbow;
1.3
a dislocated right shoulder;
1.4
a fractured right tibia/fibula; and
1.5
fracture of the C5 and C6
cervical vertebra.
[2]
The matter proceeded before me on the issues of
liability of the defendant and general damages. The parties have
conditionally settled the plaintiff’s claim in respect of past
and future loss of earnings in the sum of R221 694,40, and
the
defendant has agreed to furnish the plaintiff with an undertaking in
terms of section 17(4)(a) of the Act for the costs of
the future
accommodation of the plaintiff in a hospital or nursing home or
treatment or of rendering of a service to him or supplying
of goods
to him arising out of the injuries sustained by him in the motor
collision on 24 April 2007. This settlement is conditional
upon the
plaintiff successfully establishing the liability and/or negligence
against the defendant.
[3]
The evidence that was placed before me consists of the
medico-legal reports of all the experts on behalf of both
parties, as
well as the joint minutes of the pre-trial meetings held by the
parties’ respective orthopaedic surgeons, occupational
therapists and the psychologists, the MMF1 claim form, and the
viva
voce
evidence of the plaintiff who was the sole witness in his
case. The defendant did not call any witness to testify on its
behalf.
THE
PLAINTIFF’S EVIDENCE
[4]
The plaintiff is currently 56 years old. He was 52 at
the time of the collision. At the time of the collision he
was
employed as a security guard and he was working on night shift. On
the night before the collision he was on duty and he knocked
off work
at 06h00. On arrival at home he did not sleep and he spent the next
two to three hours with his cousin. At approximately
13h00 he went to
join a friend at a tavern where they drank three 750 ml bottles of
beer. An hour later he left the tavern and
proceeded to a tuck shop
which is situated across the Soweto Highway, to go and buy
cigarettes. After buying the cigarettes, he
walked back to the tavern
along Molokomme Street in a south-northerly direction, until he got
to the robot-controlled intersection
at the Soweto Highway. He said
when he got to the pedestrian crossing at the intersection, he saw
that the robot was green in his
favour and upon looking to his right
he saw that there were two vehicles travelling astride each other in
two lanes in an east
to westerly direction.
[5]
He said after he had walked halfway across the
pedestrian crossing and when he was just over the first lane the
robot suddenly flashed yellow and then changed to red. He said he
found himself in a difficult position since the robot had now
changed
to green for vehicles approaching from his right including the
insured vehicle which was travelling on the left lane. He
said the
vehicle that was travelling on the right lane was slightly ahead of
the insured vehicle in the left lane and that if he
had proceeded to
walk straight ahead, the vehicle in that right lane would undoubtedly
have collided with him since it was already
swerving to its right. In
the circumstances the only thing he could do was to step backwards.
As he stepped backwards, he walked
right into the path of the insured
vehicle on the left lane which then struck him on the right side of
his body. He testified that
before stepping back into the insured
vehicle’s lane, he checked to see if it was safe to do so. He
then observed that the
insured vehicle was already too close to him.
He confirmed that the insured driver applied brakes to try and bring
the vehicle
to a stop but by then the vehicle was already too close
to him. According to him, both the insured vehicle and the vehicle on
the
right lane were travelling at a speed of approximately 70 to 80
km/h prior to the collision.
[6]
He confirmed that just before the collision occurred,
the traffic light controlling his path of travel was red
whilst the
one that was controlling traffic approaching from his right,
including the insured vehicle was green. His evidence in
this respect
is also corroborated by his affidavit which he submitted to the
defendant.
[7]
The plaintiff testified that he was rendered unconscious on
impact and that he regained consciousness the following day
at the
Chris Hani Baragwanath Hospital where he was kept as an in-patient
for approximately three weeks.
[8]
His scalp laceration was managed with surtures and his left leg was
placed in a plaster cast. Furthermore,
various injections were
administered for the pain that he was getting. He testified that
presently he has intermittent pain on
the lumber spine, shoulder and
right lower leg. Furthermore he was now walking with a limp. He says
he gets headaches two or three
times a week and that his right leg
has been shortened. He complains of poor memory and that his eyesight
is weak. Because of his
injuries and the
sequelae
thereto he
can no longer play soccer and he is unable to walk for a long
distance.
[9]
The plaintiff testified that he has a Standard 6
qualification and that he never returned to work after the collision.
His hobbies before the collision were drinking and smoking and they
remained the same after the collision.
ANALYSIS
OF THE EVIDENCE
[10]
The following issues are common cause:
10.1
That the plaintiff had worked on a night shift on the previous day
and after knocking off at 06h00 on the morning
of the collision, he
never went to sleep but he later went to a tavern where he consumed
alcohol with his friend.
10.2
The plaintiff had walked past the insured driver’s lane before
the collision and was between the two lanes
for traffic travelling in
an east-westerly direction along the Soweto Highway when the robot
turned red.
10.3
The robots controlling the plaintiff’s path was red before the
collision occurred.
10.4
The
collision occurred in the insured driver’s lane.
10.5
The plaintiff attempted to avoid colliding with the vehicle on the
right lane, stepped back into the lane of the
insured vehicle and
then collided with the insured vehicle.
10.6
The
insured driver applied brakes and tried to avoid the collision.
[11]
The issue that has to be determined is whether the insured driver
negligently caused the collision, and whether the plaintiff
was also
negligent and if so, whether such negligence was a contributory cause
of the collision.
[12]
The plaintiff testified that before traversing the highway he looked
to his right and saw that there were two vehicles that
were
approaching from his right and which were travelling astride to each
other along the two lanes for traffic travelling in the
east-westerly
direction along the Soweto Freeway. I accept his evidence that the
robot was green for him before he traversed the
highway but since the
robot turned to amber and to red when he was not even halfway across
the highway, it follows that the robot
must have been green for some
time well before he started traversing the highway. If one considers
that he did see the two vehicles
approaching from his right, one
expects him to have waited to ensure that it was safe for him to
cross since he was not aware for
how long the robot had been green
before he got to the intersection.
[13]
What is clear is that when the plaintiff was between the two lanes of
traffic travelling in the east-westerly direction, he
tried to avoid
being hit by the car on the right-hand lane. He testified that in
order to avoid this vehicle he stepped backwards
into the left lane
in which the insured vehicle was travelling. Clearly, on his own
version the plaintiff decided to step into
the path of the insured
vehicle. He stated in no uncertain terms that before stepping
backwards he checked and saw that the insured
driver even tried to
apply brakes in an attempt to avoid the collision. What I find
strange is that the plaintiff never furnished
any explanation why he
never proceeded and run across to the other side of the highway. He
never mentioned in his testimony that
there was traffic coming in the
opposite direction to that of the insured vehicle. The picture that
emerges is that he is the one
who decided to walk backwards into the
path of the insured vehicle. I accordingly find that the plaintiff
acted recklessly in the
circumstances.
[14]
One can also not exclude the possibility that the plaintiff was
inebriated at the time the collision occurred. It will be recalled
that he testified that he and his friend consumed three 750 ml
bottles of beer. Although he says he was sober, I have noted that
in
the hospital records it is recorded that upon admission he had
clearly consumed alcohol although he was coherent in his speech.
Unfortunately the plaintiff was not cross-examined extensively on
this aspect so it is difficult to assess how he was affected
by the
consumption of liquor at the time of the collision. The court
nonetheless accepts that he was somewhat under the influence
of
alcohol at the time of the collision.
[15]
I am however, unable to put the entire blame for the collision on the
plaintiff. As it is common cause that the plaintiff was
hit by the
insured vehicle when he was in the middle of the two lanes, meaning
that the plaintiff had already traversed the entire
left lane in
which the insured vehicle was travelling, this begs the question why
the insured driver never saw the plaintiff before
the collision.
Unfortunately the defendant never called the insured driver to come
and testify and furnish his version. All that
was suggested to the
plaintiff was that the insured driver could not avoid the collision
and that the plaintiff was solely to blame
therefor.
[16]
It is trite law that a motorist approaching and entering an
intersection while the traffic light is green for him or her must
keep a diligent and proper lookout for traffic and pedestrians who
are already in the intersection and who entered the intersection
before the traffic light changed. Also, there is a duty not to ignore
vehicles or pedestrians who are acting in a negligent manner.
The
position was aptly explained by Milne JP in
Cockran v Durban City
Council
1965 (1) SA 795
(NPD), at 802A-B where he stated that if
a motorist enters the intersection immediately the lights become
green, he may not ignore
the possibility of other traffic, and by
logical extension pedestrians, who entered the intersection whilst
the traffic light was
green for them and before it changed to red.
See also
Netherlands Insurance Co of South Africa Ltd v Brummer
1978 (4) SA 824
(A) at 833C-F;
Walton v Rondalia Assurance Corp of
SA Ltd
1972 (2) SA 777
at 780A-B.
[17]
Counsel for the defendant submitted that a driver who has a green
traffic light in his or her favour is required to keep a
proper
lookout for vehicles and pedestrians who may have disregarded the red
light but is not required to make absolutely certain
that it is safe
to enter the intersection. Reliance in this regard was placed on the
decision in
SA Eagle v Harford
[1992] ZASCA 42
;
1992 (2) SA 786
(A).
[18]
This contention by the defendant cannot succeed. In this case we are
dealing with a situation where the plaintiff was already
in the
intersection and most importantly, the robot was green for him before
and at the time he traversed the highway. The principle
relied upon
and elucidated by the defendant, though correct, is thus not
applicable to this case.
[19]
In the light of what I have said above, I find that both the
plaintiff and the insured driver were negligent in their respective
conduct and that their negligence contributed equally to the
collision. In the circumstances I find that there should be a 50:50
apportionment of negligence in respect of both parties. The plaintiff
is accordingly entitled to recover 50% of his proven damages
from the
defendant.
QUANTUM:
GENERAL DAMAGES
[20]
It is a well-known fact that making an award for general damages
comprising pain and suffering, disfigurement, permanent disability
and loss of amenities of life is particularly difficult. However,
certain governing principles have evolved over the years. It
is now
trite that when considering general damages, the court has a wide
discretion to award what it considers to be fair and adequate
compensation to the injured party. See
RAF v Marunga
2003 (5)
SA 164
(SCA) at 169E-F. Although courts generally recognise the
necessity of making a comparison to past awards, it must always be
borne
in mind that there is no such thing as a case which is on all
fours and that past awards serve no more than to give some indication
of what sort of awards are appropriate on the facts of the particular
case. Due to the difficulty in calculating an amount to be
awarded
for non-patrimonial damage, considerations of fairness and
reasonableness always play determining roles in the assessment
of
such damages. Whilst fairness and reasonableness mean that the
claimant must be sufficiently and properly compensated for the
injury
he has suffered, it also means that inordinately high awards should
not unnecessarily burden the defendant. In
Bay Passenger Transport
Ltd v Franzen
1975 (1) SA 269
(A) at 274 Trollip, JA said that in
striving to determine a fair amount for general damages, the court
must decide “
by the broadest general considerations
”
on an amount which it considers to be “
fair in all the
circumstances of the case
”. Having said so, it must however
be acknowledged that generally awards presently are higher than those
made in the past.
Thus in
Wright v Multilateral Motor Vehicle
Accident Fund
, Corbett & Honey Vol 4 XE3-36, Broome DJP said:
“
I
consider that when having regard to previous awards one must
recognise that there is a tendency for awards to now be higher than
they were in the past. I believe this is to be a natural reflection
of the changes in society, the recognition of greater individual
freedom and opportunity, rising standards of living, and recognition
that awards in the past have been significantly lower than
those of
most other countries.
”
[21]
I have described the type of injuries the plaintiff sustained in the
collision. He complains of pain in the right shoulder
and the right
tibia/fibula. He also states that he can no longer walk long
distances or sit or stand for long periods or even run.
He says he is
unable to lift or carry heavy objects and that he cannot climb
stairs. The plaintiff also complains that he cannot
abduct his right
shoulder and that he can no longer manage household chores.
[22]
Dr Schnaid confirms that the plaintiff’s left and right arms
and his elbows are normal with a full range of movement.
Although the
plaintiff complains of back pain, Dr Schnaid states that on
examination of the lumbar spine he found the plaintiff
to have “
a
normal lumbar lordosis with full range of movement
”.
[23]
Dr Schnaid also notes that there is a fracture of the distal third
right clavicle which has not united and that the modeling
deformity
of the lateral aspect of the proximal humerus is the
sequelae
of a fracture of the greater trochanter of the humerus. He states
that an open reduction with internal fixation and bone grafting
will
be necessary to stabilise the clavicle as well as acromioplasty to
restore shoulder movements. Dr Schnaid is of the view that
the
plaintiff will experience recurrent symptoms and that depo-medrol
injections will need to be inserted into the subacromial
spec from
time to time to alleviate pain. Furthermore, this must be followed up
with physiotherapy and ant-inflammatory agents.
[24]
Dr Schnaid further confirms that the plaintiff is experiencing pain
in the right tibia which is due to shearing forces on the
fixation
screws. Furthermore, the tibial nail will need to be removed in the
future as its presence weakens the bone putting it
at risk for
further fractures should the tibia be subjected to forces such as in
a motor vehicle accident.
[25]
Regarding the scar on the plaintiff’s head, Dr Schnaid notes
that this has healed well.
[26]
Whilst the plaintiff contends that he sustained serious brain damage,
this is not supported by any medical evidence. The psychologists
defer to the opinion of a neurosurgeon with regard to the severity of
the head injury. Unfortunately no neurosurgeon was consulted
to
diagnose the severity, if any, of the head injury. It is noteworthy
that the MMF1 report only mentions a minor head injury.
In the
absence of any opinion by a neurosurgeon, I am unable to find that
the plaintiff sustained a severe injury as his counsel
contends. The
psychologists, save for agreeing that flowing from their assessments
the plaintiff did sustain a brain injury, cannot
clinically vouch to
this as it is clearly outside their realm. In any event, in the joint
minute it is recorded that Mr Joubert,
for the defendant, “
noted
a possible pre-existing learning disorder
”.
[27]
I was referred to various cases where the claimants sustained
injuries that are somewhat similar to those suffered by the plaintiff
in this case. In
Bopape v President Insurance
1990 (4) Corbett
& Buchanan A4-43, the plaintiff sustained a head injury severe
brain damage resulting in neurological deficits
and fractures of the
cervical spine and right clavicle with multiple abrasions of the
scalp. The
sequelae
in this case were in my view more severe
than in the present case and the court awarded R70 000,00 which in
2010 was valued at
R302 000,00, for general damages. I was also
referred to the case of
Britten v Minister of Police
1976 (2)
Corbett and Buchanan vol ii 673 where the plaintiff sustained a head
injury with serious consequences associated with substantial
damage
to the brain and nervous system, subdural haematoma, fractures of the
left humerus, clavicle and five ribs and a sprained
ankle. The head
injury caused a complete change of personality, impaired eyesight and
instability of gait. There was also a possibility
of early epilepsy.
The court awarded R12 000,00 which in 2010 was valued at R250 000,00.
[28]
Considering the plaintiff’s injuries and the
sequelae
thereto, I am of the view that an amount of R300 000,00 is a fair and
reasonable compensation for the plaintiff’s general
damages.
[29]
I have already found that there must be a 50:50 percentage
apportionment of damages as the plaintiff and the insured
driver were
equally to blame for the collision. The plaintiff is thus entitled to
recover 50% of his proven damages from the defendant.
[30]
I accordingly make an order as follows:
1.
The
defendant is ordered to pay the plaintiff the sum of R260 847,20.
The
defendant shall furnish the plaintiff with an undertaking in terms of
Section 17(4)(a) of Act 56 of 1996, for 50% of the costs
of the
future accommodation of the plaintiff in a hospital or nursing home
or treatment or of rendering of a service to him or
supplying of
goods to him arising out of the injuries sustained by him in the
motor collision on 24 April 2007.
The
defendant is ordered to pay the plaintiff’s taxed or agreed
costs of the action which costs are to include the costs of
the
following experts: DR E. Schnaid, Ms S Badenhorst, Ms Sugreen and Mr
Mostert.
B
H MBHA
JUDGE
OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
DATES
OF HEARING :
17,18 & 25 OCTOBER 2011
DATE
OF JUDGMENT :
15 DECEMBER 2011
COUNSEL
FOR THE PLAINTIFF :
D A LOUW
INSTRUCTED
BY
:
McMILLAN ATTORNEYS
COUNSEL
FOR THE DEFENDANT :
M P MDALANA
INSTRUCTED
BY
: MOLEFE DLEPU
ATTORNEYS