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[2013] ZAGPJHC 390
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Ngozo v Road Accident Fund (21866/2012) [2013] ZAGPJHC 390 (19 November 2013)
REPUBLIC
OF SOUTH AFRICA
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO: 21866/2012
DATE:
19 NOVEMBER 2013
In
the matter between:
NGOZO:
SEBUSISO
PATRICK
..................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
.......................................................
Defendant
JUDGMENT
WEINER
J:
INTRODUCTION
[1]
This matter arises out of a motor vehicle accident which occurred on
16 December 2009 at
approximately 23h30 in Moabi Street, Evaton
North. It resulted in injuries to Mr Ngozo, the plaintiff in the
action (“Ngozo’),
who was 20 years old at the time.
[2]
Ngozo instituted a claim against the defendant, (“the RAF”)
in the sum of R
5 500 000.00. The RAF denied liability and
defended the action. I intend to briefly set out the common cause
facts and
circumstances of the day leading up to the accident.
COMMON
CAUSE FACTS AND CIRCUMSTANCES
[3]
On 16 December 2009, a public holiday, Ngozo and an unknown number of
his friends and acquaintances
secured the services of a minibus taxi
to convey them to a music festival in Abrahamsrust and then to return
them to Evaton that
evening. The minibus taxi in question is believed
to be a newer model, namely, a Toyota Mini Quantum (“the
taxi”).
No evidence, in terms of the exact model or
specifications was put before this court.
[4]
The taxi was driven by a Mr MJ Mokoena (“the insured driver”)
at the time of
the accident. The insured driver was also the owner of
the vehicle.
[5]
At the hearing, a seating plan for the taxi was put to various
witnesses and placed before
the court (“the seating plan”).
In the front, there were two seats next to the driver (“the
driver’s row”).
Immediately behind the driver, there were
three seats and an empty space next to the door (“the 2
nd
row”), presumably to allow space for passengers to embark and
alight from the vehicle. Directly behind the 2
nd
row is
another row of seats (“the 3
rd
row”). The
configuration in the 3
rd
row is two seats behind the 2
nd
row of seats. The two seats are to the right of the taxi. There is
then a space between the two seats and the single seat (on the
left
hand side), to allow space for passengers to get the back row of the
taxi (“the back row”). Ngozo was seated in
the single
seat in the 3
rd
row on the left hand side behind and
adjacent to the taxi door.
[6]
Ngozo sustained injuries when he fell from the moving taxi driven by
the insured driver.
[7]
Ngozo was taken first to Kopanong Hospital and was discharged four
days’ later. He
was then admitted to Sebokeng Hospital after
the wound to his calf became septic.
[8]
The liability in this matter relates to the circumstances which
caused Ngozo to fall out
of the taxi. The second issue to be
determined by this court is the quantum of Ngozo’s damages as a
result of his injuries
sustained. On 6 June 2013, this court ordered
that the parties should first present evidence with respect to
merits/liability and
that the quantum evidence will follow
thereafter.
EVIDENCE
LED BY THE PLAINTIFF
NGOZO’S
TESTIMONY
[9]
Ngozo’s evidence, is that he was seated in the single seat in
the 3
rd
row. This seat is immediately next to, but
slightly back from the taxi’s sliding door. The insured driver
was driving his
taxi at high speed, down the residential Moabie
Street, Evaton, where he hit a hump in the road. This caused the door
of the taxi
to open and Ngozo fell out of the taxi.
[10]
Ngozo testified that he lived in Moabi street, roughly three minutes
from the accident scene. He did
not consume alcohol and did not
smoke. On the day in question, he had been to Abrahamsrust and was
conveyed by taxi. Ngozo and
his friends had packed a cooler box with
some meat for a braai and some cold drinks. They spent the day at the
festival and then
left around 22:30. His friend, Jabulani Mashinini
(“Mashinini”) and a few others were in the taxi. He knew
some of
them.
[11]
The taxi arrived in Evaton and was dropping off some of the occupants
at certain locations in and around
Evaton and Evaton North. The
streets were quiet and he didn’t hear any music when they
arrived in Evaton. They then proceeded
to drop off one Ntswaki in
Evaton. Ngozo testified that he did not close the door when Ntswaki
alighted but that she did.
[12]
The taxi arrived at Evaton North and was, at this time, speeding. The
taxi went over a hump in the
road which caused the door to open.
[13]
Under cross-examination, it was put to Ngozo that he had told certain
experts who had assessed his
injuries, that he was an occasional
drinker at family functions. He conceded that he sometimes has a
Red
Square
(an alcoholic drink). He said his mother does not know
that he drinks and neither does his friend Mashinini. Ngozo denied
drinking
that day and testified that no one in his group was drinking
alcohol. He testified that alcohol was allowed at the festival and
that he saw people drinking, however, his group was only drinking
Coca-Cola
.
[14]
It was put to Ngozo that the insured driver will testify that Ngozo
and his group appeared drunk, that
they demanded the music to be
played loud and that they were “
jiving”
in their
seats. Ngozo disputes this.
[15]
Ngozo denied that when they dropped Ntswaki off, he told the driver
to proceed onward with the door
still open which the driver refused
to do.
[16]
It was put to Ngozo that the insured driver was told by one of his
passengers that someone had fallen
from the taxi before the speed
hump and that the driver was only told to stop after a while down the
road. This, too, was denied
by Ngozo.
[17]
Ngozo further rejected the contention that the insured driver was
driving at 40Km/h and said they had
been moving at a speed in excess
of 40Km/h.
[18]
It was also put to Ngozo that a passenger in the front seat, Ms
Kedibone Eva Diale (“Diale”)
would testify that he,
Ngozo, opened the door in Moabi Street whilst the taxi was moving.
Ngozo denied this.
[19]
According to Ngozo, the door handle was at the front of the
door and he would have had to stand
up from his seat and either take
a step forward to reach the handle or stretch forward in a lunging
position to reach the door
handle. He did neither.
[20]
It was put to Ngozo that the insured driver would testify that his
vehicle was the newer model
Mini-Quantum
and that they are
equipped with seat belts. Ngozo testified that whilst this model of
taxi usually has seatbelts, he didn’t
see any seatbelts in this
particular vehicle.
MASHININI’S
TESTIMONY
[21]
Mashinini testified that he had known Ngozo since standard 6. They
were first classmates and then they
became friends.
[22]
Upon arrival at the music festival, there were informed that there
was no alcohol allowed into the
confines of the music festival. He
and Ngozo did not drink alcohol.
[23]
Mashinini stated that he had been with Ngozo all day and was in the
taxi when the accident happened.
He was seated in the back row.
[24]
Mashinini testified that the driver did not know where everyone lived
and to facilitate him being given
directions, the music was switched
off. The taxi dropped at least one passenger off in Evaton proper.
This was the person referred
to earlier as Ntswaki. Ngozo was seated
next to the door. Mashinini testified that he could not see who had
opened and closed the
door as the taxi was fitted with the high seats
which obstructed his view. After dropping off Ntswaki, Mashinini
testified that
they then proceeded to Evaton North.
[25]
When they arrived in Evaton North, Mashinini stated that the street
upon which they were travelling
was not a tar road but rather was
surfaced with paving bricks. This resulted in the road being bumpier
than the average road. The
street also had speed humps which
Mashinini said perhaps the insured driver did not see. The insured
driver went over one of these
speed humps and a few moments
thereafter, Mashinini saw the door was open and someone had fallen
out.
[26]
Mashinini, under cross-examination, stated that he did not see the
speed hump but he felt it as the
driver went over it. When the taxi
hit the bump, the door opened. He couldn’t give the court an
estimate of the speed. Mashinini
stated that the door was not open
prior to this.
[27]
The taxi then stopped and the occupants alighted from the vehicle.
The occupants and the insured driver
went to Ngozo, to ascertain what
injuries he had sustained.
[28]
A few minutes later, the insured driver and some of the passengers
returned to the vehicle and departed
from the scene. It was put to
Mashinini that the driver and the occupants left because they felt
that Ngozo was the master of his
own misfortune. Mashinini said this
was not the case.
[29]
Mashinini reiterated that the door opened when the vehicle hit the
hump. He, however, could not say
whether the door opened on its own,
when the vehicle went over the the hump, or whether Ngozo had opened
it.
[30]
Mashinini denied that they drank alcohol that day. He testified that
he didn’t drink until he
was 21. He stated that he did not know
if Ngozo drank alcohol but he could say that he had never seen
him drink.
[31]
Mashinini was asked whether Ngozo had wanted the door to remain open
after the insured driver had dropped
off Ntswaki. He did not hear
Ngozo make this request but he was not with him, he was seated at the
back talking to other people.
[32]
The cross-examination then turned to the taxi itself. Mashinini was
told that it was a modern taxi
and it was equipped with seatbelts.
Mashinini stated that he did not see any seat belts.
[33]
It was put to Mashinini that Diale would testify that she saw Ngozo
opening the door whilst the vehicle
was in motion. Mashinini’s
answer was that he cannot dispute this. Counsel put to him again that
Ngozo fell out before the
speed hump. Mashinini disputed this and
said that the taxi hit the hump and the door then opened and Ngozo
fell out.
TESTIMONY
OF MOKOENA
[34]
Mrs Mokoena is Ngozo’s mother. She testified that Ngozo was
residing with her at the time of
the incident. She confirmed that he
is still residing with her in Evaton North. She was telephoned when
the accident occurred and
went to the scene.
[35]
Mokoena testified that she reported the accident to the police
approximately a week after the incident.
She explained the main
concern was that the driver of the taxi had disappeared and they had
no knowledge of his whereabouts nor
his particulars. They later
managed to trace and identify him.
[36]
Mokoena stated that she took this information to the police station
which resulted in the insured driver
being asked to come to the
police station the next day. The insured driver attended at the
police station the next day and had
a conversation with Mokoena.
Mokoena asked the insured driver why he did not aid Ngozo in
attaining medical assistance. Mokoena
then testified that the insured
driver’s response was that he was sorry.
[37]
She stated that her son did not drink alcohol and that he spends most
of his time studying and on Saturdays
he would attend church.
[38]
She testified that her son had told her that the insured driver was
on the way back to Evaton North
and was in hurry. Mokoena said her
son also said that the insured driver did not see the speed hump and
that it was this that caused
the door to open and for him to fall
out. She stated that this was what her son had told her when he was
in the Kopanong hospital
in the early hours of 17 December 2009.
[39]
That concluded the plaintiff’s case on the merits.
EVIDENCE
LED BY THE DEFENDANT
INSURED
DRIVER’S TESTIMONY
[40]
The insured driver was both the owner and driver of the taxi in
question. He had two taxis, both “
Mini-Quantums
”
which had seats in the configuration as set out above.
[41]
The insured driver testified that the taxi was booked from Evaton to
Abrahamsrust and then a return
journey to Evaton North, via Evaton.
It turned out that there was one passenger who needed to be dropped
off in Evaton. It was
at the this drop-off point where the person
seated on the left hand side in the third row, Ngozo, asked for the
taxi to proceed
with the door open. The insured driver testified that
he refused to depart until the door had been closed. The person then
closed
the door and the taxi continued on its way.
[42]
The insured driver was under the impression that he was taking them
to a person’s home for a
house party. He was receiving
directions from one of the passengers to an address in Evaton North.
The music in the taxi was loud
and the occupants of the taxi were
“
jiving”
(described as dancing and moving to the
rhythm of music whilst being seated). He confirmed that no one got
out of their seats to
dance.
[43]
The insured driver stated that he did not see Ngozo open the door and
added that Ngozo would have had
to have stood up to reach the handle
to open the door and he did not see him do this.
[44]
He remembers seeing two unknown men walking in the street on the
opposite side of the road but before
the speed hump. The presence of
these men, at such a late hour made him nervous and he focussed his
attention on them.
[45]
He testified that there were 14 occupants with the person giving him
directions in the front seat wearing
an orange shirt and drinking
“
Hunters Gold”
. He further testified that the
person sitting nearest to the door in the single seat, Ngozo was
wearing a white shirt and was carrying
a “
Red Square”
beverage bottle. The insured driver was sure about this as he
remembered Ngozo getting in with a bottle that was blue in colour.
He
could not remember who was carrying the cooler bag but stated that
all the occupants were drinking inside the vehicle.
[46]
The insured driver denied that he was hurrying that night. He denied
that he still had two more trips
to make. He said that he was in no
hurry as he was going home after dropping off his passengers. He
denied that he drove over the
speed hump with such speed that it
caused the vehicle to “
jolt”.
He stated that he
had seen the hump and had slowed down before he went over it. It was
after going over the hump that he had heard
that someone had fallen
from the vehicle.
[47]
It was put to the driver that he did not ensure that the sliding door
of the taxi was properly latched
or closed after the passenger had
been dropped off in Evaton. The insured driver responded that his
vehicle was equipped with a
modern instrument display and that the
open door warning light would illuminate should a door not be
properly closed. The light
did not come on after the door was closed.
He also confirmed that he saw Ngozo close the door and could hear
that it was properly
closed. The insured driver testified that the
door was definitely closed after Ntswaki alighted as it would have
opened on the
other humps that they had gone over that night. He
testified that he would have stopped immediately if the light had
been illuminated
as he would have seen it. When asked whether he saw
such a light and stopped the taxi immediately when Ngozo fell out,
the insured
driver responded that he did not see the light and
stopped the vehicle because his passengers had told him to stop. He
testified
that he did not see the light as he was focussing on the
road. He also stated that he did not hear the door opening as the
radio
was loud.
[48]
The insured driver denied that he was obliged to tell Ngozo to move
from the seat in the third row
or to put on his seat belt. He
testified that the doors could be locked with a central locking
button. He did not activate the
central locking to ensure that Ngozo
did not attempt to open the sliding door as he had requested. The
insured driver stated that
his vehicle was equipped with seat belts.
He also stated that he did not think that he had to tell the
passengers to wear their
seatbelts.
[49]
The insured driver estimated that he was travelling below 40Km/h as
he was approaching the hump, as
he had checked his speedometer. He
checked the speedometer at the moment of the hump but did not notice
whether the light was on.
[50]
The insured driver stated that when the passengers told him to stop,
he looked back and saw the door
was open and immediately stopped the
vehicle. He testified that Ngozo was “
in front of the hump
”.
[51]
He thought Ngozo’s injuries were serious. He, however, left the
scene without leaving a note
nor contacting the paramedics. He
confirmed that he did not report the accident to the South African
Police Services
.
DIALE’S
TESTIMONY
[52]
Diale testified that she was in Grade 11 at the time of the accident.
She confirmed that she was with
the party that had hired out the taxi
to take them to and from Abrahamsrust. She was not familiar with
Ngozo or Mashinini before
the day of the accident.
[53]
She had brought a bag and some
Hunters Gold
in a cooler box.
The passengers were conveyed to the Vaal Mall to buy some food and
some alcoholic drinks.
[54]
They arrived at Abrahamsrust sometime around noon. There was an
entrance fee to be admitted into the
grounds of the festival and as
they did not have money, they remained outside. She and her friends
had put money in together to
buy the
Hunters Gold
and, to
avoid splitting up her party, they remained outside. She confirmed
that the Plaintiff and Mashinini went into the festival
grounds.
[55]
At the end of the day, they gathered all outside the grounds of the
music festival and phoned the driver
to pick them up. She was seated
in the driver’s row for the return trip to Evaton. She was
seated in the middle seat, between
the insured driver and another
passenger, whom she could not recall. In the second row, behind the
driver, there were two seats
with people behind her, with whom she
was conversing.
[56]
The music was on loud. There were seatbelts in her row. The seat she
was sitting on was broken as it
did not have a backrest. She
confirmed that they were planning on going to an after party but said
these plans failed to materialise
as a result of the accident.
[57]
They had dropped a female passenger off in Evaton. Ngozo wanted to
leave the door open after the female
passenger had alighted. Ngozo
was reprimanded by the insured driver as well as the other
passengers. Ngozo then closed the door.
[58]
Diale could not recall if the passenger next to her was dropped off.
She moved off the broken seat
and moved into the seat on the left
hand side. She then retracted this and said she did not move into the
seat on the left hand
side.
[59]
She remained in the middle seat and was looking backwards and was
talking to the occupants in the second
row. She would have been
facing forward when she was giving instructions to the driver.
[60]
She had consumed 7
Hunters Gold
throughout the day and was
“
tipsy
”. She could not remember who else was
drinking in the taxi as the only people she could see from her seat
were the two passengers
in the second row and Ngozo in the single
seat in the third row. She testified that Ngozo had a beer bottle in
his hand and appeared
drunk.
[61]
Upon entering Evaton North and whilst the taxi was in the vicinity of
Moabi Street, Diale testified
that Ngozo said something to the effect
that he was now in his township and he opened the door. Ngozo had a
bottle of beer in one
hand and used the other hand to open the door.
He was seated and moved one foot and his body forward and stretched
forward with
his left hand. She did not warn the insured driver that
Ngozo was attempting to open the door. She said that Ngozo then fell
out
of the taxi. She and the others screamed. The insured driver
turned down the music and stopped the vehicle and the occupants then
alighted.
[62]
It was put to Diale that the vehicle went over a hump and that caused
the door to open and Ngozo to
fall out. She replied by stating that
she did not see him fall out. She confirmed that she saw the door
open and that she continued
to converse with the two people seated
behind the driver looking over her right shoulder. She was asked to
provide the court with
the names of the people with whom she was
conversing. Her response was that she does not remember them. She was
asked whether or
not she was concerned that the door was open to
which she testified that she was
tipsy
. She stated that she
was also
jiving
and shouting in the taxi.
[63]
She reiterated that she saw Ngozo open the door but she then looked
away to continue her conversation.
She then testified that she saw
Ngozo in the street when she looked out of the passenger window in
the front row and saw Ngozo
in the side view mirror. She then
screamed and the taxi came to a halt. She confirmed that the taxi was
driving at a normal speed.
[64]
They all alighted from the vehicle and went to check on Ngozo. He was
calling out for someone to call
his mother and he was bleeding. The
driver then left but she could not recall whether he left with
passengers or not. They told
the driver to go.
ANALYSIS
OF THE EVIDENCE
[65]
There is a common thread of undisputed facts in the evidence of
Ngozo, Mashinini, Diale and the insured
driver. They all concur that
the taxi left Abrahamsrust at around 22:30 and first dropped off
Ntswaki in Evaton before heading
to Evaton North. All four
witnesses place Ngozo in the single seat in the third row. They agree
that Ngozo fell from the taxi and
was injured.
[66]
The evidence of Diale and the insured driver was that after dropping
off Ntswaki in Evaton, Ngozo had
wanted the door to remain open.
Both, however, stated that after being reprimanded to close the door,
Ngozo did indeed close the
door.
[67]
Diale was the only person who testified that she saw Ngozo open the
door whilst the taxi was in motion
in Moabi Street. Her evidence, in
this regard, must be treated as evidence of a single witness. In this
regard, the case of
Daniels
v General Accident Ins Co Ltd
[1]
is
of relevance. In that case King J held at 759I-760B the following:-
It
is of course competent for a court to find in favour of a party on
the strength of the evidence of a single witness - s 16 of
the Civil
Proceedings Evidence Act 25 of 1965, which provides that judgment may
be given in any civil proceedings on the evidence
of any single
competent and credible witness…
…
although
there is apparently no 'cautionary rule' in civil cases as in
criminal matters where proof beyond reasonable doubt
is
required, the single witness, more particularly where he is one of
the parties, must be credible to the extent that his uncorroborated
evidence must satisfy the Court that on the probabilities it is the
truth”.
[68]
The court needs to be satisfied that the evidence of Diale is
reliable and trustworthy. Her evidence
was that she had consumed 7
Hunters Gold
during the day and was “
tipsy
”.
Her testimony was also that she was sitting in the middle seat, next
to the driver in the front row, then she moved to
the left hand side
seat in the front row. She then retracted this. She stated that she
was talking to people in the first row behind
the driver over her
right shoulder. It seems likely that if she had moved seats, as she
had originally testified, from the broken
seat to the seat on the
left hand side of the vehicle she would not have been able to see
what Ngozo was doing. It is also likely
that she would have moved
seats when the other person got out, as the seat she was sitting on
was broken.
[69]
Although an independent witness, Diale’s evidence is
unsatisfactory and contradictory. As her
testimony is the only
evidence that Ngozo in fact opened the door, the court cannot accept
such a version and disregard the evidence
of Ngozo that he did not.
In addition, the version of the plaintiff and Mashinini that the door
opened when the taxi hit the hump
appears more probable.
[70]
The insured driver testified that his taxi was equipped with
seatbelts. He further testified that upon
arriving at Abraamsrust,
Ngozo and the other occupants appeared drunk. They also got into the
taxi, continued to drink, wante the
music loud and were
jiving
in
their seats. It must then be asked what is required of an operator of
public transport in these circumstances. In
Kruger
v Coetzee
[2]
it
was held:-
“
Once
it is established that a reasonable man would have foreseen a
possibility of harm, the question arises whether he would have
taken
measures to prevent the occurrence of the foreseeable harm. The
answer depends on the circumstances of the case. There are,
however,
four basic considerations in each case which influence the reaction
of a reasonable man in a situation posing a foreseeable
risk of harm
to others:
(a)
The degree or extent of the risk created by the actor’s
conduct;
(b)
The gravity of the possible consequences if the risk of harm
materialises;
(c)
The utility of the actor’s conduct; and
(d)
The burden of eliminating the risk of harm.”
[3]
[71]
Counsel for Ngozo, referred to
Rail
Commuters Action Group and Others v Transnet Limited t/a Metrorail
and Others
[4]
(“Rail
Commuters”). It was submitted that the duty to ensure the
safety of passengers being conveyed by taxi should
be seen as similar
to the duty to ensure the safety of commuters on trains as was the
case in
Rail
Commuters
.
[72]
A taxi driver, such as the insured driver, is indeed performing a
public function- that being public
transportation. O’Regan J in
the
Rail
Commuters
case held that those that perform such a public function should be
held accountable. Placing this upon the shoulders of the taxi
driver
would not “
impose
undue burdens on them that would impair their ability to provide the
service effectively or efficiently”
[5]
[73]
In
Tungata
v The Road Accident Fund
[6]
,
the
plaintiff was thrown from a taxi that was travelling with its sliding
door open. The driver of that taxi failed to take into
account the
state of intoxication of the plaintiff and failed to ensure that the
door was closed and/or that the plaintiff was
wearing a seatbelt.
[7]
The
sliding door of the taxi had to remain open as it was jammed stuck in
that position. The plaintiff was fully aware of both these
facts.
Bozalek J held that an insured driver should foresee
“
that
intoxicated passengers in their condition might well behave in a
foolhardy manner in an existing dangerous situation”
[8]
[74]
In
Fredericks
v Shield Insurance Company Ltd
[9]
it
was held by Rabie AJ that a bus driver is under a duty to close the
door before the bus moves off. However, if the passenger
is under the
influence of alcohol, the bus driver should show even more attention
to having the door closed before the bus continues
on its way.
[10]
[75]
I see no reason why this cannot be applied to a taxi save for the
fact that the driver is usually unable
to close the door himself and
relies on the passengers to do so. This may result in the door not
being properly closed, especially
if the person closing the door is
drunk. According to the insured driver testified, his vehicle was
equipped with the “open
door indicator light” and this
would illuminate if the door was not closed. The driver can
accordingly be fully aware amd
in complete control of the door and
whether it is closed or not.
[76]
In
Ndhlovu
and Others v Durban City Council
[11]
,
Fannin J summarised the responsibility that is placed on bus driver
as follows:-
(i)
a bus
driver (as indeed every driver of a vehicle) must take all reasonable
precautions against dangers to his passengers
known or
reasonably to be apprehended;
(ii)
a bus
driver is entitled to regulate the manner in which he drives his bus
upon the assumption that his passengers will take such
steps to
protect themselves against the ordinary risks and difficulties
attendant upon travelling in a bus as may reasonably be
expected of
such passengers; and
(iii)
what
may reasonably be expected of a passenger of a bus will depend upon a
number of circumstances, including the age, physical
condition and
the apparent ability of the passenger to cope with such ordinary
risks and difficulties.”
[77]
It is clear that the authorities place a duty on both the driver of
the public vehicle and the passenger
to take steps to protect
themselves from suffering harm. In this regard, the insured driver,
on his version, testified that passengers
appeared drunk. Ngozo, in a
foolhardy manner, also requested that the taxi drive with the door
open. In that situation, the insured
driver should have told Ngozo to
wear a seatbelt. And should have insisted that Ngozo sit in a seat
away from the door. He should,
also have centrally locked all doors
as he was able to do.
[78]
In the circumstances, I find that on his own version, the insured
driver should have taken more steps
to ensure the safety of his
passengers.
[79]
The plaintiff, who was a major at the time, should also be held
responsible for ensuring his own safety.
He should have worn a seat
belt. The evidence from the insured driver was that his taxi was
equipped with seatbelts. Ngozo testified
that he did not see any
seatbelts. The insured driver testified that this is a newer model
Quantum and that the vehicle was fitted
with seatbelts. Ngozo did not
look for a seatbelt. If he genuinely did not see a seat belt after
looking, he should have moved
seats to one that was not in the
unfortunate position of being next to the door. In
Vorster
and Another v AA Mutual Insurance Association Ltd
[12]
,
Goldstone J held that “
in
determining whether conduct of a plaintiff constitutes a negligent
act or omission the enquiry is directed to the question as
to whether
such act or omission deviated from the norm of the bonus
paterfamilias”
[13]
.
It would be expected for the plaintiff to be more cautious and to
look for the seatbelt and then put it on. Had he worn the seatbelt
he
would not have fallen out of the taxi when the door opened.
[80]
In the circumstances, The Road accident fund should be liable for the
Plaintiff’s proven damages
but liability is limited to 80%
after taking into account the plaintiff’s contributory
negligence (20%) in failing to wear
a seatbelt (see
Vorster
supra)
.
QUANTIFICATION
OF PLAINTIFF’S CLAIM
[81]
The plaintiff alleges that he has suffered certain brain and
orthopaedic injuries as a result of the
accident. The plaintiff
claims R5 500 000 which is broken down as follows:-
81.1.
estimated future medical and hospital expenses
in the sum of
R200 000;
81.2.
estimated past loss of earnings in the
sum of R300 000;
81.3.
estimated future loss of earnings/earnings
potential in the sum of
R4 000 000;
81.4.
general damages in the sum of R1 000 000.
[82]
The defendant was invited to admit to certain agreements concluded in
the joint expert minutes by the
clinical and neuropsychologists (Dr C
Angus and Dr P Dlukulu), the occupational therapists (Ms J van der
Berg and Mr D Brummer),
the industrial psychologists (Mr L Linde and
Dr W Pretorius) and the uncontested report of Ms A Mattheus, the
educational psychologist
for the plaintiff. This invitation was
turned down.
[83]
The parties, however, did agree that in the event that the RAF is
found liable for the injuries sustained
by Ngozo, which I have indeed
found, then the RAF will furnish the plaintiff with an undertaking as
envisaged in terms of Section
17(4)(a) of the Road Accident Fund Act
56 of 1995 (“the Act”) in respect of the costs of
future medical expenses.
[84]
The defendant has objected to the RAF4 form and has indicated that it
wishes for the matter of determining
the seriousness of Ngozo’s
injuries to be reffered to the tribunal, as envisaged in Section
17(1), read with Regulations
3(1), of the Act (“the tribunal”).
Plaintiff’s counsel has argued that this will only result in
undue delay to
the finalisation of this matter in light of
medico-legal reports and joint minutes of the experts filed in this
matter. Counsel
for the defendant responded by referring the court to
the Matter of
The
Road Accident Fund v Duma and Three Related Cases
[14]
(“
Duma
”).
In
Duma
,
Brand JA at [19] held as follows:-
“
the
decision whether or not the injury of a third party is serious enough
to meet the threshold requirement for an award of general
damages was
conferred on the Fund and not on the court. That much appears from
the stipulation in regulation 3(3)(c) that the Fund
shall only be
obliged to pay general damages if the Fund – and not the court
– is satisfied that the injury has correctly
been assessed in
accordance with the RAF 4 form as serious. Unless the Fund is so
satisfied the plaintiff simply has no claim for
general damages.”
[85]
Plaintiff’s counsel referred to
Faria
v The Road Accident Fund
[15]
(“
Faria
”).
In that case, the Fund had accepted the joint minutes of the experts
that stated that the injuries were indeed serious
but then objected,
on the day of trial, to the RAF4 forms. I ruled that it “
it
would be artificial to hold that simply because the defendant has
objected to the RAF 4 assessment, that, irrespective of the
basis
therefore, the plaintiff must follow the procedure set out in
Regulation 3.”
[16]
It must be noted that in the
Faria
case the Fund’s expert, in terms of the narrative test, had
found the injury to be a serious long term impairment. It must
also
be noted that the judgment in
Faria
has
been appealed against and is presently pending before the Supreme
Court of Appeal.
[86]
In the present matter, the joint minute of Drs Earle and Lewer-Allen,
the neurosurgeons, stated the
following:-
“
We
therefore consider that he sustained a mild head injury and that
there are no neurological sequelae pertaining to his brain
functioning”.
[87]
Drs Van Niekerk and Swartz are the orthopaedic surgeons of the
plaintiff and defendant. They jointly
prepared a minute in which it
is stated that they disagree as to the whole person impairment
(“WPI”) in terms of the
American Medical Association’s
(“AMA”) guidelines. Doctor Swartz calculated a 5% WPI
and Doctor Van Niekerk
a 10% WPI. Doctor Swartz found that Ngozo does
not qualify to be assessed in terms of the narrative test whereas
Doctor Van Niekerk
believes that he does. It is, therefore, clear
that the Doctors are not in agreement as to the seriousness of
Ngozo’s injuries.
[88]
Section 17(1)A of the Act provides that only a medical practitioner
registered in terms of the Health
Professions Act, 56 of 1974 can
conduct the assessment to determine whether or not a particular
injury meets the threshold requirements.
Ngozo was assessed by
numerous experts in regard to this matter. However, only the
neurosurgeons and the orthopaedic surgeons are
considered medical
practitioners in terms of section 17(1)A of the Act. In the
circumstances, the neurosurgeons have found there
to be no
neurological sequelae and the orthopaedic surgeons are in
disagreement as to whether the narrative test is applicable.
Both
orthopaedic surgeons agree that Ngozo does not satisfy the threshold
in terms of the WPI.
[89]
It would then be quite acceptable, in light of
Duma,
for the
RAF to object to the assessment of Ngozo’s injuries as serious
and for the matter of general damages to be referred
to the appeal
tribunal appointed by the Registrar for the Health Professions
Council in terms of Regulations 3(4) through 3(13)
of the Act.
[90]
Plaintiff’s Counsel has sought an order that should the Court
determine that the matter of general
damages be referred to the
appeal tribunal, as is indeed the case, then an order should be made
that payment of an amount awarded
to the plaintiff in respect of his
claim for general damages would be subject to the determination of
whether the plaintiff’s
injuries are serious injuries as
contemplated by Section 17(1) of the Act. This court, at this stage
and as mentioned in
Duma
[17]
and in regulations 3(3) of the Act, is not competent to decide the
seriousness of the injuries. It is difficult then to decide
what the
sum of damages should be when I cannot decide the seriousness of the
injuries. Seriousness is not a question that is simply
answered in
affirmation but has a degree of severity attached which would impact
on the amount of general damages that should be
awarded. This
matter, as a result, must be referred to the tribunal as to the
seriousness of Ngozo’s injuries and only
then can the amount of
general damages that the plaintiff has sustained as a result of the
accident be determined.
[91]
The final issue for determination is that of past and future loss of
earnings. Plaintiff’s counsel
submits that joint minutes
concluded between the neuropsychologists, the occupational therapists
and the industrial psychologists
rendered this part of the damages
not contentious save for the appropriate contingencies that should be
applied. The Fund was afforded
numerous opportunities to admit these
reports but ultimately decided to contest them at the hearing.
Counsel for the Fund argued
that the future loss of earnings is bound
to the decision of the tribunal regarding general damages and that a
decision with regard
to the quantum could only be decided after the
tribunal has decided on the seriousness of Ngozo’s injuries.
This is because
the ruling will deal with the physical impairment of
Ngozo’s right calf, left shoulder and head injury. This
approach though,
does not take into account that whilst the tribunal
may be considering the seriousness of the injuries, Ngozo has been
examined
by numerous specialists and experts and that those experts
have agreed that his ability to earn in the past and the future has
been diminished. There would be no reason to wait for the Tribunal to
determine the seriousness of the injury when the relevant
experts
have already said to what extent his earnings potential has been
affected by the accident. In the circumstances, I intend
to deal with
the damages sustained by the plaintiff through his diminished ability
post the accident. The other experts (save for
the neurosurgeons and
orthopaedic surgeons) are
ad idem
that his working ability has
been diminished.
[92]
Ngozo suffered a head injury, a brachial plexus injury of his left
upper limb and a degloving injury
of his right calf. As a result,
Ngozo has reduced tolerances due to his orthopaedic injuries that he
sustained in the accident.
Ngozo is presently studying towards a 3
year certificate course in boilermaking. The Joint reports of the
occupational therapists,
Ms Van der berg and Mr Brummer, have agreed
that this occupation falls within the heavy work category, a category
for which Ngozo’s
injuries make him unsuitable as he has
decreased lifting abilities. They agree that he does not meet all the
physical demands that
may be placed upon Ngozo as a boilermaker.
Ngozo could do some work of lower range medium physical work but that
he would require
frequent breaks. As a consequence of these physical
disabilities, the plaintiff will not be able to work as a boilermaker
irrespective
of him completing medical and therapeutic intervention.
[93]
It is also important to note that these physical impediments are
significant in that the plaintiff
is not training to work in a semi
sendentary occupation. He is rather training to be in an occupation
where heavy manual labour
is an integral part of his day-to-day
activities.
[94]
The neuropsychologists, Dr Angus and Dr Dlukulu, both found residual
cognitive deficits as a result
of the accident. They both suggest
that Ngozo is vulnerable to mood and anxiety problems as a result of
him not feeling as if he
is performing as well in relation to the
effort he puts into tasks. They recommend that he should be afforded
10 sessions of counseling
in the future if and when the need should
arise. They both agree that this will not have a curative effect as
Ngozo will always
have neurostigmata. Dr Angus noted the finding of
Dr Dlukulu where she found that Ngozo had difficulties with
perceptual, visual
discrimination and closure difficulties. Dr
Dlukulu submits that this would suggest that the plaintiff would not
be suitable for
retraining as a draughtsman who would be designing
and drawing steel plates.
PAST
LOSS OF EARNINGS
[95]
Mr Linde and Dr Pretorius, the Industrial Psychologists, agree that
Ngozo would have probably become
a boilermaker but for the accident
and earned, according to Mr Linde, B1 Level for two to three years
and, according to Dr Pretorius
between A3 and B2 on the
Paterson-derived grading scale (“Paterson”). It was put
to Mr Linde whether he accepted that
Ngozo could earn between A3 and
B2. Mr Linde conceded that it was indeed possible but that he stood
by his original opinion of
between A3 and B2. Counsel for the
plaintiff argued that these differences can be dealt with by the
application of a 5% contingency
deduction on the plaintiff’s
actuarial calculation for past loss of earnings. This percentage was
supplied by the Plaintiff’s
actuary Mr Jacobson for
illustrative purposes. Munro Consulting, who prepared an actuary
report on behalf of the defendant, did
not provide a contingency
percentage that should be applied to the pre accident scenario.
Counsel for the Fund did not, however,
challenge the 5% suggested.
[96]
I accept that a 5% contingency would be just and equitable in the
circumstances as it is probable,
in light of the Ngozo’s
present academic performance, that he would have qualified as a
boilermaker and earned at the level
of B1.
FUTURE
LOSS OF EARNINGS
[97]
Dr Pretorius and Mr Linde submit that he would have earned, but for
the accident, within the scale
of C2 in terms of Paterson and would
have received salary inflationary agreements after completing his
apprenticeship. Dr Pretorius,
however, suggests that there is a
possibility that Ngozo would have been unable to complete his trade
and would then have been
an unqualified artisan earning within the
B3/B4 levels. Mr Linde, however, stated in the joint minute that if
one was to consider
Ngozo’s post academic performance then it
would be improbable that he would have been unable to complete his
qualification
if the accident had not happened. The accident has
affected him in a neuropsychological sense yet he is passing his
courses. Without
this impediment, I find it improbable that he would
not have completed his studies and progressed as boilermaker earning
within
the C2 level.
[98]
The experts, however, differ on the retirement age of Ngozo. Mr Linde
believes that Ngozo would have
retired at 65 and Dr Pretorius
believes that Ngozo would retire between 63 and 65 years of age. Dr
Pretorius, testified that the
normal retirement age is 65. Ngozo has
shown a good work ethic at the FET and it would be probable that he
would work to the age
of 65 years.
[99]
After considering the differences between the experts with regard to
his pre-accident employment scenario,
I find that applying a 10%
deduction to the plaintiff’s prospective loss, as calculated by
Mr Jacobson, is acceptable in
the circumstances.
[100]
The Post-accident position, from the joint minute of the Dr
Pretorius and Mr Linde is clear, “
we agree that he will no
longer be able to work in the field as a tradesman.
” Ngozo
will not be able to work as boilermaker according to these experts.
Mr Pretorius believes he will be able to perform
basic draughtsman
work whereas Mr Linde says that he will not be able to work as a CAD
operator/ draughtsman.
[101
]
The experts are in agreement that Ngozo would
probably enter the labour market at the lower quartile of the
earnings for semi-skilled
labourers in the non-corporate sector in
2015, and with time and natural progression would reach the upper
quartile by the age
of 40-45 years. His earnings would be in line
with earnings of a semi-skilled labourer in the non-corporate sector
according to
the Quantum Yearbook 2013 by Robert Koch those amount
being:- R16 400,00 – R47 300,00 – R120 000,00
per annum. The experts concur that even at this lower level his
earnings are compromised and a higher than usual contingency
deduction
should be applied.
[102]
Mr Jacobson has proposed, in his original report that a 50%
contingency deduction be applied. However, after receiving the
joint
minute of the industrial psychologists which recommended a higher
than usual contingency, Mr Jacobson filed an updated report
dated 19
June 2013 wherein he used a contingency deduction of 60%. Counsel for
the plaintiff submits that applying this contingency
is fitting in
the circumstances as Ngozo is, in light of the South African labour
market, functionally unemployable and suggested.
Dr Pretorius, under
cross-examination readily conceded that the plaintiff will find it
extremely difficult to obtain and sustain
employment. I, however,
believe it is probable that Ngozo does have a good work ethic and he
is also performing satisfactorily
at the FET College. He is on track
to complete his qualifications this year and despite him not being
suited to being a tradesman
and not meeting all the requirements to
be a boilermaker, his attitude seems to be one where he will
endeavour to find work and
would strive to ensure that he remains
employable. However, this needs to be considered in the context of
the dire state of youth
unemployment in this country. Dr Pretorius,
under cross-examination, stated that Ngozo will have trouble
competing with other fully
able-bodied job seekers. Ngozo has
physical and cognitive defects that will require a sympathetic
employer who would be willing
to accommodate him. Dr Pretorius
accepted that the unemployment rate is around 25% but that the lower
skill level and youth unemployment
rate are considerably higher. In
light of Ngozo’s attitude, weighed against his probability of
finding work, a 50% contingency
deduction on the prospective loss
figure calculate by the plaintiff’s expert would be acceptable
and fair to both parties.
[
103]
The loss of earnings is calculated by taking the difference in value
of Ngozo’s income but for the accident
and the value of his
income having regard to the accident after the deduction of the
relevant contingencies that should be made
for sickness,
unemployment, errors in the estimation of future earnings and life
expectancy, earlier retirement and general hazards
of life.
[104]
The accrued loss has been calculated by Mr Jacobson to be R37 113.00
and after applying a 5% contingency, the nett
accrued loss totals
R35 257.00
[105]
The prospective loss of earnings is determined by taking the value of
the income but for the accident (which is R5 182 081.00)
and applying the contingency of 10% mentioned above. The net
prospective loss of earnings but for the accident is, therefore,
R4 663 873. The value of future income having regard to the
accident is R1 678 455.00 less a 50% contingency
deduction
would then amount to R839 228.00. Total nett loss of earnings is
the differential between the two which amounts
to R3 859 902.00
[106]
As I have ruled above, the defendant has been found liable for only
80% of the defendant’s damages and, accordingly,
the defendant
is liable to the plaintiff in the sum of R3 087 922.00 made
up as follows:-
Past
Loss of Earnings
Value
of Income but for the accident:
R 37 113.00
Less
5% contingency deduction :
(R 1 856.00)
Net
Accrued Loss:
R 35 257.00
Prospective
Loss of Earnings
Value
of Income but for accident:
R 5 182 081.00
10%
contingency deduction:
(R
518 208.00)
Net
value of income but for accident:
R 4 663 873.00
Value
of Income Having Regard to Accident:
R1 678 455.00
50%
contingency deduction:
(R
839 228.00)
Net
value of Income having regard to the accident: R
839 228.00
Net
Prospective Loss:
R 3 824 645.00
Total
Net Loss:
R3 859 902.00
Total
Net Loss after 20% Liability
Deduction
R3 087 922.00
[107]
Counsel for the Plaintiff has sought a punitive cost order in this
matter in that there were joint minutes compiled
by the
clinical
and neuropsychologists (Dr C Angus and Dr P Dlukulu), the
occupational therapists (Ms J van der Berg and Mr D Brummer),
the
industrial psychologists (Mr L Linde and Dr W Pretorius) that would
have resulted in approximately 2 days’ less of court
time had
they been admitted. The invitation to admit these reports was
declined and Counsel for the Fund indicated that she would
like the
opportunity to cross-examine the plaintiff’s experts. Despite a
lengthy cross-examination, all the experts stood
by their method of
assessment and the joint reports and the cross-examination
effectively resulted in naught. The Fund’s
own experts were
also called and whose testimony reaffirmed their joint minute as well
as the evidence of the opposition’s
expert. This matter could
have been decided without these experts being called and for only the
evidence of the industrial psychologists
with respect to the correct
contingency to be applied being sought by the Court. It would be
acceptable to impose a punitive cost
order on the defendant for the
two days that were indeed wasted.
[108]
Accordingly an order is made in terms of the Draft marked X.
Weiner
J
Date
of hearing:
05,06,10,11 June 2013, 29 August 2013
Date
of judgment:
19 November 2013
Counsel
for Plaintiff:
Adv G Strydom SC
Attorneys
for Plaintiff:
AF Van Wyk Inc.
Counsel
for Defendant:
Adv H Ngomane
Attorneys
for Defendant:
Pule Inc.
[1]
1992
(1) SA 757 (C)
[2]
1996
(2) SA 428
(A) at 430E-G.
[3]
Ibid.
[4]
[2004] ZACC 20
;
2005
(2) SA 359
CC
[5]
Ibid
at
83.
[6]
Unreported
(Case Number 16718/2006) Date of Judgment 8 March 2006 in the
Western Cape High Court.
[7]
Ibid
at [2].
[8]
Ibid
at [23].
[9]
1982
(2) SA 423 (AD).
[10]
Ibid
at
423.
[11]
1970
(1) SA 39 (D).
[12]
1982
(1) SA 145 (T).
[13]
Ibid
at
151H.
[14]
Road
Accident Fund v Duma and Three Related Cases 2012 JDR 2249 SCA (Case
Numbers:202/2012, 64/2012, 164/2012, 131/2012).
[15]
Faria
v Road Accident Fund (2210/2012) [2013] ZAGPJHC 63 (12 March 2013).
[16]
Ibid
at
51.
[17]
Duma
supra
at
[19].