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[2014] ZAGPJHC 263
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Mogale v Road Accident Fund (29208/13) [2014] ZAGPJHC 263 (14 October 2014)
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REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE
NO: 29208/13
DATE:14
OCTOBER 2014
In the matter
between:
MOGALE: MATLOU
DANIEL
......................................
Plaintiff
And
ROAD ACCIDENT
FUND
..........................................
Defendant
JUDGEMENT
CARSTENSEN AJ:
1. In this action,
the Plaintiff instituted a personal injury claim against the Road
Accident Fund for past hospital and medical
expenses, future
hospital, medical and related expenses, past loss of earnings, future
loss of earnings and general damages.
2. The action arose
out of a collision on the 26th of February 2012 between two motor
vehicles on a straight road, namely Miles
Stocker Drive in
Roodepoort.
3. The Plaintiff, an
adult male sales representative aged 57 years, having been born on
the 26th of November 1957, was driving a
4X4 SSangYong with
registration letters and numbers M……..1GP and the
insured driver, namely Innocent Xaba, drove
an Audi A4 with
registration letters and numbers TN……..GP.
4. Both the driver
and the passenger in the insured vehicle were killed in the
collision.
5. The Plaintiff was
alone in the vehicle and was charged with culpable homicide, but
acquitted.
6. The blood alcohol
level of the insured driver was 0.3%, six times over the legal limit.
7. All of the facts
mentioned above were common cause between the parties.
8. Before the
commencement of the trial the Defendant admitted and the parties
agreed general damages in the amount of R750 000.00
and during the
course of the trial, admitted past medical expenses in the amount of
R278 600.04 and past loss of earnings of R70
000.00.
9. The Defendant
also furnished an undertaking in respect of future medical and
hospital expenses, but the percentage to borne by
the Defendant was
in dispute.
10. In addition, the
following factors were admitted:
10.1. The actuarial
assumptions made by Whittaker in his actuarial report, although the
contingency percentage remained in dispute.
10.2. That the
Plaintiff, having regard to the collision, will retire at 65 years,
but it was in dispute when the Plaintiff would
have retired, but for
the collision.
11. In addition, a
number of bundles and the documents contained therein were admitted
into evidence, including:
11.1. the joint
minute of Prof Foster and Dr Maxwell Matjane, the psychiatrists;
11.2. the industrial
psychologist reports of Mrs B Donaldson and Ms T Gama;
11.3. the agreements
reached and reflected in the joint minutes of the orthopaedic
surgeons, namely Dr G A Versfeld and Dr J J Van
NIeker;
11.4. a letter form
the Plaintiff’s employers, which is signed by the group HR
Manager, Susan Farrell, and reads that the
letter confirms that CST
Electronics (Pty) Ltd (the Plaintiff’s employers) has no fixed
retirement age policy and that an
employee may continue to work for
the company as long as he or she is able to perform to the
management’s satisfaction the
standards in the position they
hold with the company.
12. In paragraph 1.6
of the pre-trial minute, the parties agreed that the following
documents would constitute evidence at the trial:
12.1. in the merits
dossier, bundle D: the officer’s accident report duly
completed and dated 26th February 2012;
12.2. an affidavit
by the Plaintiff dated 26th March 2013;
12.3. the statement
by the Plaintiff, dated 11th of May 2012;
12.4. the motor
vehicle all owner query form for M…… dated The 7th of
August 2013;
12.5. 4 colour
photographs of the damaged motor vehicle, M………GP
undated;
12.6. the Roodepoort
SAPS docket, 1092/02/2012 dated 26th February 2012;
12.7. the medical
dossier, bundle G, which included the RAF1 medical report dated 26th
September 2012;
12.8. the Life Flora
Clinic records dated the 23rd of May 2012;
12.9. the Life Flora
Clinic records dated the 15th of May 2012;
12.10. the clinical
records, bundle H, which includes the clinical notes of Dr Franel and
Rochards, dated 27th February 2012;
12.11. the
radiological report of Dr A Du Plessis dated 27th February 2012;
12.12. the
radiological report of Dr C Du Toit, dated 28th February 2012;
12.13. the medical
certificate by Dr UNF Ukunda dated 14th July 2012;
12.14. the medical
certificate of Dr UNF Ukunda dated 27th July 2012;
12.15. 6 colour
photographs in respect of the injuries received by the Plaintiff;
12.16. the
employment dossier, bundle I, of the Plaintiff which included the
Plaintiff’s curriculum vitae and payment slips
of CST
Electronics (Pty) Ltd for the 25th March 2012, 25th May 2012, 25th
June 2012, 25th July 2012, 25th September 2012, 25th
October 2012,
25th November 2012, 25th February 2013 as well as the Plaintiff’s
IRP5 forms for 2011, 2012, 2014.
13. The remaining
issues therefore were:
13.1. the merits;
13.2. the extent of
the undertaking for future medical expenses and in particular, the
percentage thereof;
13.3. the issues
relating to future loss of earnings but only:
13.3.1. but for the
collision, what age would the Plaintiff have retired;
13.3.2. having
regard to the collision what contingency should be applied.
14. The Plaintiff
argued that the onus to prove its case rests on the Plaintiff on the
balance of probabilities, particularly on
the merits to the extent of
what is the most likely scenario in the circumstances, but whether
there was any negligence on the
part of the Plaintiff was an onus
which rests on the Defendant.
15. The first issue
determined in respect of the merits was the cause and liability of
the Plaintiff vis a vis the insured driver.
16. It is common
cause and appeared from the photographs:
16.1. that at the
point of the collision and before that point the road (in the
Plaintiff’s direction of travel) was straight;
16.2. that
approximately 80m before (in the Plaintiff’s direction of
travel) the point of impact, a blind rise was evident;
16.3. on the
Plaintiff’s left hand side of the single lane, there was a
metal barrier; and
16.4. the speed
limit was 60kmph.
17. The Plaintiff
gave evidence that:
17.1. the collision
occurred between 19h30 and 20h30 on the evening of Sunday 26th
February 2012 in fine weather, but dark conditions;
17.2. he was
travelling on his side of the road in an east to west direction,
towards Roodepoort CBD and that he knew the road well
and travelled
on it “quite a lot”;
17.3. he was
travelling slightly below the speed limit;
17.4. his side of
the road constituted one lane, whereas the opposite side constituted
2 lanes in a west to easterly direction;
17.5. as he crested
the blind rise he saw on his side of the road bright lights
approaching him;
17.6. he reacted by
applying brakes harshly but the other car was coming too fast and a
collision occurred;
17.7. he did not
have an opportunity to swerve and lost consciousness, waking up in
hospital the following morning;
17.8. he could not
estimate the speed of the other car, but stated that it was
travelling fast;
17.9. subsequent to
seeing the bright lights and applying the brakes, he had no
recollection of the collision.
18. The evidence
also established that the insured driver’s car was travelling
from a direction where the car would have travelled
on a road which
curved to the left in a west easterly direction and this appears from
the photographs.
19. During cross
examination of the Plaintiff, issues relating to the fact that he did
not mention the bright lights in certain
of his police statements,
neither did he mention that he had slammed on brakes, indeed in his
first statement, which was dated
the 16th of April 2012 he had
mentioned the lights, but had not mentioned it in a further statement
on the 19th of November 2012.
20. In any event, as
the Plaintiff points out, he mentioned all of this during the
criminal trial. He confirmed that he does have
an independent
recollection on the bright lights. In any event the only
alternative, in my view, seems to be that the insured
driver was
driving with his lights off. This was not suggested by any party.
21. The Plaintiff
confirmed that he had little time to react and cannot remember
swerving or turning the steering wheel. All he
remembered was that
he braked harshly. He also did not notice any other cars and did not
recall hearing skidding or skreetching
of the tyres. Cross
examination of the Plaintiff relating to the damage to the vehicles
was, in my view, inconclusive.
22. During cross
examination no doubt, in my view, was raised on the Plaintiff’s
evidence, or his version of the collision
and there was no reason
arising out of cross examination why his version should not be
accepted in its entirety. The Plaintiff
made a good impression in
the witness box and the Defendant’s counsel correctly conceded
that the Plaintiff was an honest
man who made an excellent impression
on the court.
23. In support of
the Plaintiff’s version Mr Grobbelaar, gave expert accident
reconstruction evidence for the Plaintiff, although
extensively cross
examined, gave impressive evidence and consistently, to my
satisfaction, answered questions put to him. His
evidence was clear,
concise, well-reasoned and compelling.
23.1. He had
investigated the actual scene and he had also had access to the
accident report, the police photographs, the police
sketches and the
statements of the Plaintiff.
23.2. He took
measurements and photographs and these were all consistent with the
police plan.
23.3. He also relied
on aerial views of the accident scene which were most useful.
24. He analysed the
damage to the SSangYong and the damage to the Audi and concluded that
the SSangYong had collided with its front
against the right front
corner and right front side of the Audi.
25. He concluded
that the fact that there was no impact damage to the right side of
the SsangYong and the impact damage to the Audi
extended from the
right front corner, along the right front side of the Audi to a
position including the right front door means
that there was a
substantial angle between the vehicles at the point of impact.
26. He then compared
the damage to:
26.1. the position
in the police photographs where the vehicles came to rest. The
SSangYong came to rest across the right hand
lane, travelling along
the direction of the Audi and the Audi came to rest on its correct
side, but off the road and back along
its path of previous travel;
26.2. the point of
impact, as marked by the police photographs and the police sketch
plan;
26.3. the tyre marks
which commenced in the SSangYong’s lane and continued into the
Audi’s lane;
26.4. the police
photographs which showed tyre marks crossing from the lane of travel
of the SSangYong into the Audi’s lane
at an angle, to where the
collision occurred.
27. He was of the
view that seen in conjunction with the tyre mark, the Plaintiff’s
right hand front wheel locked up and this
meant that it is unlikely
that the Plaintiff’s vehicle could have swerved to the right,
even had the driver applied a right
steering action as the locked
wheels had ceased to rotate.
28. The fact that
the tyre marks commenced well into the SSangYong lane shows
conclusively, in my view, that the SSangYong driver
applied brakes
harshly whilst in his lane.
29. Consequently, in
considering the substantial angle between the vehicles at the point
of impact, but a relatively small angle
of the tyre marks from the
original direction when compared to the lane markings, he found that
it was probable that the Audi was
also at a substantial angle to its
left at the time of impact, i.e. travelling across its lane from its
right to its left.
30. He explained
this carefully during his evidence and there is no doubt left in my
mind that at the time of impact, the Audi was
swerving to the left as
depicted in his schematic visualisation diagram in his report. He
concludes therefore, as do I, that the
Audi was either in a left turn
or left swerve when the collision occurred. In fact, on the facts
before me, his reconstruction
of the accident is logical and appears
to be common sense.
31. His conclusion,
which I accept was that when the SSangYong crested the blind rise the
Audi was on the wrong side of the road
and when the Audi noticed the
SSangYong, it swerved back into its own lane but at the time it was
too late to avoid the impact.
The SSangYong, on seeing the Audi,
applied brakes harshly but could not avoid the impact.
32. It is my view
therefore that on the balance of probabilities the sole cause of the
collision was the negligence of the Audi
driver, the insured driver.
33. I do not believe
that any negligence can be attributed to the Plaintiff who applied
brakes harshly, he could not swerve to the
left due to the barrier
marking, and, his manoeuvring to the right may have been caused
either by his harsh braking, or by him
attempting to avoid the
vehicle travelling in his lane.
34. Much was made
during argument and cross examination of the Plaintiff of an
“appropriate instinctive reaction” and
it was suggested
to the Plaintiff that instinctively he ought to have swerved to the
left.
35. I am not
prepared to take judicial notice of what was instinctively
appropriate and there was no evidence relating to how persons
instinctively react in this situation.
36. The Defendant’s
counsel, Mr Louw, argued that the fact that the collision occurred on
the wrong side of the road draws
a presumption that the Plaintiff was
negligent. He argued that there were no scientific principles to
support Grobbelaar’s
reconstruction and that Grobbelaar’s
opinion was tailored to suit the Plaintiff.
37. In my view,
Grobbelaar’s evidence was fair and unbiased and he fulfilled
his duties as an expert witness to the court.
(Schneider v AA,
2010
(5) SA 203
at 211 E - J)
38. In fact,
Grobbelaar analysed and compared the damage to the vehicles, the
police sketch, the police photographs, the damage
to the road at the
point of the collision, the point of collision, the tyre marks, the
nature and dimensions of the road, the length
of the tyre marks, the
barrier line and surrounding circumstances and the blind rise.
39. Louw posed
certain possibilities to Grobbelaar and to the court, but none of
these were accepted by Grobbelaar as being realistic.
40. Louw argued that
the Plaintiff was negligent as a consequence of:
40.1. The fact that
his speed was excessive. This was not established in evidence. The
Plaintiff gave evidence that the speed
limit was 60kmph and that his
speed was slightly less than that. There is nothing to gainsay that.
Grobbelaar conceded that the
speed of the Plaintiff would have been
similar to the speed of the insured driver, and those speeds could
have been anywhere between
50 and 80kmph, but he placed it no
stronger than that. It was thus not established that the speed was
excessive and in any event,
I agree with Mr Chaitowitz, as was
conceded by Mr Louw, that speed in itself is not negligence. The
Defendant would have had to
show that the Plaintiff’s speed,
whatever it was, if lower would have enabled him to avoid the
collision and that was not
established.
40.2. His turning
right towards the accident, instead of left. Again, there is no
evidence of this. It seems on the balance of
probabilities that the
Plaintiff did not in fact turn right, but that his right hand front
wheel locked under braking, drawing
his vehicle to the right. This
is consistent with the Plaintiff’s version, who stated that he
did not turn right (or at
least has no recollection of turning
right).
40.3. The fact that
the accident occurred on the incorrect side of the road. That is not
a conclusion which can be drawn from these
facts. The reason why the
collision occurred on the right hand side of the road was fully
explained by Grobbelaar. When the Plaintiff
applied brakes, he was
undisputedly on his correct side of the road. The only reason why he
applied brakes harshly was that he
saw lights on his side of the
road. This is the most probable scenario.
41. Finally, Mr Louw
argued that the Plaintiff could have avoided the collision as the
collision occurred approximately 80m from
where he first saw the
lights, however:
41.1. Grobbelaar’s
evidence was that a normal person’s reaction time is 1.5
seconds, and that increases at night to
between 1.5 and 2.5 seconds.
41.2. The distance
it takes at 60kmph to travel 60m would be 2.3 seconds, and to travel
80m would be 3 seconds.
41.3. Taking into
account a reaction time of 1.5 to 2.3 seconds to apply the brakes,
thereafter the time it takes to stop the car,
it is quite clear that
the evidence established that the Plaintiff did not have time to
avoid the accident.
41.4. Thus, I cannot
agree with Mr Louw that the Plaintiff was 80% to blame.
42. Of course, one
must take into account the common cause fact that the insured
driver’s blood alcohol level was 6 times
over the legal limit.
This probably resulted in him not reacting, by applying brakes.
However in my view, if the insured driver
found himself on the
incorrect side of the road he probably would not have applied brakes,
but probably would have swerved to the
left to get back on his
correct side, this would accord with Grobbelaar’s opinion.
43. In addition, the
skid marks show that the Plaintiff reacted on his side of the road.
This draws one to the conclusion that
there was no negligence on his
part.
43.1. Particularly,
if the skidding and the locking of the front rear tyre caused his
vehicle to drift to the wrong side of the
road.
43.2. If, however,
he turned to the right in order to avoid a car approaching him on his
side of the road with bright lights, then
I must agree with Mr
Chaitowitz that this would be the case of sudden emergency and the
Plaintiff would be a person who, by reason
of the insured driver’s
want of care, found himself in a position of imminent danger and as a
consequence, cannot be “guilty”
of negligence merely
because he did not act in the best way to avoid danger.
44. Consequently, in
my view, it has not been established that the Plaintiff contributed
towards the collision in any way.
45. The next issue
relates to quantum. The first question is what the Plaintiff’s
retirement age would have been but for
the collision. The Plaintiff
suggests that he would have continued to work until 70. In support
of this, the evidence was:
45.1. that he was
held in high regard by his employer;
45.2. that he had
been employed there since 1998;
45.3. that his
employer had no fixed retirement age;
45.4. the letter
handed in in evidence which suggested that he would continue to work,
as long as he was able to perform to management’s
satisfaction,
which the Plaintiff appears to have done;
45.5. that due to
the cost of living, he would have continued to work past 65;
45.6. he enjoyed his
work;
45.7. he has a
grandchild to support who is currently 4 years of age and thus, it is
probable that he would continue to support
her until she reaches
majority;
45.8. that prior to
the collision, he was a healthy man who enjoyed playing soccer.
46. The Defendant
argued that the usual retirement age was between 60 and 65 years and
that the Plaintiff’s assessment that
he would have retired at
70 was too high and that consequently, the Defendant’s
submission was that the Plaintiff would retire
at 62.5 years, being
the medium between 60 and 65 years of age and if one then arrived at
a medium between 62.5 and 70, that medium
would be 66.25 years.
Consequently, that I should find that the Plaintiff would have
retired at 66.25 years.
47. There is in fact
no evidence to support this and thus I am left, on the balance of
probabilities, that the Plaintiff would have
retired, but for the
accident, at the age of 70.
47.1. I also agree
with the statement of Barbara Donaldson in the joint minute that
although the normal retirement age is considered
to be 65, those
people who retire before that time do so at considerable
disadvantage. In fact it is my view, (although irrelevant
in light of
what I have set out above), that persons who retire at 65 in today’s
economic climate, also do so at considerable
financial disadvantage,
and that people today are healthier and continue to work after the
age of 65.
48. The only
remaining issue then is what contingency deduction should be applied
to the income it is anticipated the Plaintiff
would now earn
subsequent to the collision. The Plaintiff contended for a deduction
of 25% whereas the Defendant suggests 10%.
The Defendant argued that
the contingency should not be excessively high and that the Plaintiff
would not be required to miss
a great deal of work and consequently,
it would be generous to award a contingency of 10%.
49. The Plaintiff
argued that 25% was appropriate, taking into account that the
Plaintiff was 57 years and is was agreed now that
he would probably
work until 65 years of age, that he is no longer a fit person and
that over the next 8 years, his serious injuries,
which were agreed
in the joint minute, would in all likelihood adversely affect his
work, his commission and his productivity.
50. In the joint
minutes, the orthopaedic surgeons agreed that he sustained serious
and substantial injury and that provisions would
have to be made:
50.1. for the
treatment of his hip symptoms, including a possible hip replacement;
50.2. for
conservative treatment to his fractures and ligament injuries;
50.3. for the
surgery in the form of a total knee replacement;
50.4. for
conservative management and treatment of his fractured calcaneus and
possible surgical treatment;
50.5.for
conservative management of his left ankle fracture.
51. They also agreed
that his symptoms and disabilities would adversely affect his work.
52. In light of
this, I am drawn to the conclusion that the most reasonable
contingency is certainly substantially higher than the
10% contended
for by the Defendant, but not quite as high as the 25% argued for by
the Plaintiff. It is my view that 20% is appropriate.
53. Relying on
Whittaker’s calculations, I am of the view that his future loss
of income calculation should be as follows:
Value of income
uninjured R3 168 838.00
Less contingency
deduction as agreed (5%) (R158 442.00)
Sub total,
uninjured R3 010 396.00
Value of income
injured agreed R1 940 207.00
Less contingency
deduction (20%) (R388 041.00)
Sub total,
injured R1 552 165.60
54. Consequently,
the total net loss of the Plaintiff amounts to R1 458 230.40.
55. Thus, the
calculation of the Plaintiff’s quantum of damages is as
follows:
Past hospital and
medical expenses (agreed) R278 600.04
Past loss of
earnings (agreed) R70 000.00
Estimated future
loss of earnings R1 458 230.40
General damages
(agreed) R70 000.00
TOTAL R2 556 830.44
56. Consequently, I
make the following order:
56.1. Defendant
shall pay plaintiff a capital sum of R2 556 830.44;
56.2. Defendant
shall furnish Plaintiff with an undertaking in terms of
Section
17(4)(a)
of the
Road Accident Fund Act, No. 56 of 1996
, to pay 100%
of the costs of the future accommodation of Plaintiff in a hospital
or nursing home, or treatment of or rendering
of a service or
supplying of goods to him, arising out of the injuries she sustained
in the motor vehicle collision on 26 February
2012 and the sequelae
thereof, after such costs have been incurred and upon proof thereof.
56.3. The aforesaid
capital amount and High Court party and party costs are payable to
the Plaintiff’s attorneys’ trust
account, the particulars
of which are:
Joseph’s
Incorporated Trust Account
RMB Private Bank
Account No. 504 501
03 011
Branch Code: 261
251
56.4. Defendant to
pay Plaintiff’s taxed or agreed party and party costs on the
High Court scale, such costs to include:
56.4.1. the costs
attendant upon the obtaining of payment of the full capital amount
referred to; and
56.4.2. the costs of
the medico-legal reports, joint minutes of Dr GA Versfeld, Dr Gian
Marcus, Prof. Meryll Voster, Ms Suzette
Murcott and Ms Barbara
Donaldson; and
56.4.3. the costs of
the radiological report of Dr David Marx, dated 7 February 2013 and
the costs of the actuarial reports of Algorithm
Consultants &
Actuaries CC dated 18 September 2014 and 6 October 2014 and 8 October
2014; and
56.4.4. the costs of
the expert report of Mr Barry Grobbelaar dated 5 September 2014, his
preparation fees and his fees for attendance
at Court on 7 October
2014.
56.5. Plaintiff
shall, in the event that costs are not agreed upon, serve the Notice
of Taxation on Defendant’s attorneys
of record.
56.6. No interest
shall run against the Defendant for a period of 14 days from date of
this order.
P L CARSTENSEN
ACTING JUDGE OF
THE
HIGH COURT
HEARD: 8th
OCTOBER 2014
DELIVERED: 14th
OCTOBER 2014
COUNSEL FOR
PLAINTIFF: ADV M CHAITOWITZ SC
INSTRUCTED
BY: JOSEPH’S INC.,
REF. MR CALITZ
COUNSEL FOR
DEFENDANT: ADV LOUW
INSTRUCTED
BY: NOZUKO NXUSANI INC.,
REF: MR MABASO
(jmt.9.10.14)