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[2016] ZAGPJHC 69
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Ngwenya v Malete (2013/33246) [2016] ZAGPJHC 69 (30 March 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2013/33246
DATE: 30 MARCH 2016
In the matter between:
NGWENYA,
STONY
............................................................................................................
PLAINTIFF
And
MALETE,
TOKOLOGO
.................................................................................................
DEFENDANT
J U D G M E N T
TWALA AJ
[1] The plaintiff, a 46 year old man,
sues the defendant for damages arising out of a motor vehicle
accident that occurred on the
18 October 2008 in Crystal Park,
Benoni. The plaintiff was a passenger in a motor vehicle that
collided with another in a robot
controlled intersection.
[2] This matter came before Court on
the 6 May 2015 and the defendant failed to appear in Court. Default
judgment was entered against
the defendant and the Court made the
following order:
• The issues of liability and
quantum of damages are separated in terms of Rule 33(4);
• The defendant is liable for the
damages of the plaintiff;
• The issue of the quantum of
damages is postponed sine die;
• The defendant is ordered to pay
the plaintiff’s taxed or agreed costs of the action to date.
[3] It is apposite for me to mention at
this stage that there was no appearance for the defendant. On
enquiry from the plaintiff’s
counsel about the whereabouts of
the defendant or its counsel, it appeared that the defendant had lost
interest in defending the
matter.
[4] On the 10 June 2015 the defendant
was served with the notice of set down for hearing of the matter on
the 17 March 2016. On
the 20 November 2015 the plaintiff served the
defendant with the Rule 37 notice calling for a pre- trial conference
on the 2 December
2015. The defendant failed to attend the pre-trial
conference scheduled for the 2 December 2015. On the 25 February
2016 this
matter came before the Judge for certification and it was
certified ready for trial. The defendant did not attend the
certification
and it today still persists with its non-appearance.
[5] The issue that remains for
determination by this Court is the quantum of damages suffered by the
plaintiff. At the start of
the hearing of this case, Counsel for the
plaintiff made an application for the admission as evidence the
expert medical legal
report of Dr C. Barlin, an orthopaedic surgeon,
who examined and prepared a report on the injuries sustained by the
plaintiff and
the sequelae thereof. An affidavit by Dr Barlin
was handed up confirming the contents of his report on the plaintiff.
[6] The plaintiff testified that he was
a passenger in a motor vehicle that collided with another at a robot
controlled intersection.
He sustained fractures on both his legs. He
suffered multiple abrasions and contusions. He was taken from the
scene of the accident
to Tembisa Hospital by an ambulance. He was
hospitalised for a period of three (3) months. Both his legs were
immobilised in a
below- knee plaster casts. On his discharge from
hospital, he was using a wheel chair for some time and was later
given crutches
which he used for almost a year. He cannot walk or
stand for long periods as he is still enduring pain especially on his
right
leg and foot. He used to play soccer almost every week and now
he cannot play soccer because of his injuries. He uses some pain
killer tablets when the pain is unbearable and elevates his leg and
foot at night.
[7] At the time of the accident he was
employed by Group 5 as an assistant to the electrician earning a
salary of R5000 per month.
He worked for two years after he returned
to work from the accident and was retrenched. However, he was paid
whilst he was off
duty due to the accident. He is presently employed
in the same position by a company known as Athol and earns a salary
of R3000
per month. He does not perform as much at work as he did but
for the accident. He has now been working for Athol for the past 3
years.
[8] According to Dr Barlin’s
report the plaintiff suffered bilateral grade 1 tibial fractures on
both legs and multiple abrasions
and contusions. The fracture of the
middle and distal thirds of the right tibia was internally fixed with
an intramedullary locking
nail and proximal and distal screws and has
united fully in an anatomical position. The midshaft fracture of the
left tibia and
fibula was treated by internal fixation of tibial
fracture with an intramedullary locking nail and proximal and distal
screws.
This fracture has likewise united in an anatomical position.
The plaintiff continues to experience severe shin pain aggravated by
activity. He has unsightly 10 cm long longitudinal scars over the
patellar tendons bilaterally. He has a 10 cm long inverted hockey
stick-shaped scar over the anteromedial aspect of the right distal
shin. He has 5 X 1 cm unsightly cross-hatched transverse scar
over
the anterior aspect of the left shin.
[9] It is Dr Barlin’s evidence
that the removal of the locking screws on both legs would be
beneficial to the plaintiff. There
is no need for removal of the
intramedullary nails. Following the proposed surgery, the plaintiff
is likely to be off work and
on crutches for approximately three
works. He may require analgesics and anti-inflammatories,
intermittently. The costs for the
conservative treatment will
approximately amount to R10 000 and for the surgery it will be a sum
of R35 000. With adequate treatment,
he is likely to be able to
continue working in his current capacity until retirement age.
[10] That was the case for the
plaintiff. As indicated above, the defendant was not in court and
therefore the matter proceeded
in his absence.
[11] In the case of Siffman vs Kriel
1909 TS 538
the court said:
“It does not follow, because
evidence is not contradicted, that therefore it is true. Otherwise
the court, in cases where
the defendant is in default, would be bound
to accept any evidence the plaintiff might tender. The story told by
the person on
whom the onus rests may be so improbable as not to
discharge it.”
In the case of McDonald vs Young
2012
(3) SA 1
(SCA) the court stated the following:
“It is settled that
uncontradicted evidence is not necessarily acceptable or sufficient
to discharge an onus.”
[12] Counsel for the plaintiff
contended that the plaintiff has proven its damages for the injuries
it sustained in the accident.
Plaintiff’s evidence is
corroborated by the medical legal report compiled by Dr Barlin in
that it list the injuries sustained
by the plaintiff and the sequelae
thereof.
[13] I agree with Counsel for the
plaintiff that the plaintiff has proven its damages in this case.
Although there are differences
in the evidence of the plaintiff and
that of its expert, it only relates to the sequelae of the injuries
sustained by the plaintiff
in the accident and the future
employability of the plaintiff.
[14] I am inclined to accept the
evidence of Dr Barlin since his report is clear and unambiguous. He
stated in his report that there
is likelihood that, once the surgery
is done to remove the screws on the fixatives in the legs of the
plaintiff and with adequate
treatment given, he will be able to
continue working in his current position until retirement age.
However, this will necessitate
the plaintiff to be off work for at
least three weeks.
[15] It is my view therefore, that the
plaintiff is entitled to be compensated for future medical expenses
for the surgery to remove
the screws in his legs and for the
conservative treatment thereafter.
[16] Further, Counsel for the plaintiff
contended that plaintiff will lose his three weeks earnings after
undergoing the surgery
as stated by Dr Barlin and provision should be
made therefore. I agree with Counsel that plaintiff is entitled to
be compensated
for the three weeks he will be off work after surgery.
[17] Counsel for the plaintiff has
referred to various authorities which were helpful but none of which
specifically dealt with
the injuries sustained by the plaintiff, or
the sequelae thereof which is specific to the plaintiff. I accept
that there are no
two cases that are similar in all respects.
[18] Having regard to the injuries
sustained by the plaintiff, the sequelae thereof, the loss of
amenities suffered by the plaintiff
in that he is unable to play
soccer again, the pain and suffering he had to endure as a result of
the accident and the pain, discomfort
and inconvenience he is still
to endure when undergoing further surgery, I am of the view that an
amount of R320 000.00 is just
and equitable to be awarded to the
plaintiff in respect of general damages in this case.
[19] In the circumstances, I make the
following order:
A. The defendant is liable to pay to
the plaintiff damages in the sum of R365 000.00 made up as follows:
I. General damages R320 000.00
II. Future medical expenses R45 000.00
B. Interest on the said sum of R365
000.00 at the rate of 15.5% per annum from date of issue of summons
to date of payment, both
days inclusive
C. The defendant to pay the costs of
this action including the costs of the experts of the plaintiff
TWALA
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for the Plaintiff: ADV.
BLOCK
Instructed by: NORMAN BURGER &
PARTNERS INC
TEL: 011 786 3096
Counsel for the Defendant:NO
APPEARANCE
Instructed by:
Date of Hearing: 17 MARCH 2016
Date of Judgment: 30 MARCH 2016