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2010
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[2010] ZAGPJHC 138
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Mthetwa v Road Accident Fund (08/15751) [2010] ZAGPJHC 138 (23 September 2010)
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
REPORTABLE
CASE NO:
08/15751
DATE:
23/09/2010
In the matter between:
MTHETWA,
JABULILE
IMMACULATE
.................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
.....................................................................
Defendant
J U D G M E N T
KATHREE-SETILOANE, AJ
:
[1] The
plaintiff, Ms Jabulile Immaculate Mthetwa claims damages from the
Road Accident Fund (“
the
defendant
”)
arising out of bodily injuries sustained in a motor vehicle accident
which occurred, on 13 May 2005, on the corner of
Kitchener Street
(“
Kitchener
”)
and Third Street (“
Third
”),
Bezuidenhout Valley, Johannesburg between motor vehicle with
registration number JYL 499 GP driven by Mr S.A. Gani (“
the
insured driver
”)
and the plaintiff, a pedestrian.
[2] The matter comes before me for the determination of liability
and the quantum of damages. The plaintiff’s claim for
damages
is set out as follows:
General damages (i.e. pain and suffering,
loss of amenities of life, disfigurement etc.)
(actual and future) R3 000 000,00
Past loss of earnings R 36 000,00
Future loss of earnings and/or reduction
in earning capacity R2 000 000,00
Past hospital and medical expenses R 15 000,00
Future medical
expenses
R1 000 000,00
Total R6 051 000,00
[3] I am informed that the following heads of damages have been
agreed to and settled by the parties in the following manner:
3.1 Past loss of income R11 173.05
3.2 In
respect of the claim for future medical and hospital expenses
(inclusive of the costs associated with providing plaintiff
with
artificial limbs), the defendant has furnished the plaintiff with an
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act No. 56 of 1996
.
[4] In
respect of the determination of the quantum of damages, the
plaintiff’s future loss of earnings or reduced earning
capacity
and general damages are the only issues that remain for
determination.
COMMON CAUSE FACTS
[5]
The
parties have agreed to the following common cause facts and
circumstances between them:
“
LIABILITY
On 13 May 2007 at Bezuidenhout Valley, Johannesburg, the
plaintiff while being a pedestrian was involved in a collision (‘the
Collision’) with an insured motor vehicle (‘the
vehicle’) being driven at all relevant times by Shabir Gani
(‘the insured’);
The degree
of fault (‘Liability’) on either part of the parties is
in dispute.
QUANTUM
That the Plaintiff sustained the following injuries as a result
of the collision with the Vehicle driven by the Insured:
An amputation above the knee of her left leg effected by the
collision on the scene and described thus by Dr. Anthony Thomas:
‘
A traumatic amputation of the left leg’;
Extensive injuries to her left arm necessitating the amputation
of the arm shortly after the collision in hospital, described as
thus by Dr Anthony Thomas:
‘
A severe compound fracture of the left humerus with
compound fracture of the left olecranon.’
The following medico-legal reports are common cause and accepted
in evidence:
Dr. J.J. van Niekerk;
Dr. A. Thomas;
Dr. A.P.J. Botha;
Ms. A. Jamotte;
M. van Niekerk;
Ms. R. Leshika;
Dr. J.A. Smuts;
Mr. K.G. Wilson.
The following joint minutes are common cause and accepted in
evidence:
The Orthopaedic Surgeons’, Drs. J.J. van Niekerk and A.
Thomas;
The Occupational Therapists’, Marietje van Niekerk and
Rose Leshika;
The Industrial Psychologists’, Dr. J. Greeff and Ms. A.
Jamotte.
The Actuaries’, I. Minnaar and G.A. Whittaker.
6. The
aerial photograph and copies thereof are admitted in evidence as
depicting the T-junction where the collision between the
Plaintiff
and the Insured took place.
”
LIABILITY
[6] In
respect of the issue of liability, the degree of fault of both the
insured driver and the plaintiff is in dispute. Paragraph
5 of
plaintiff’s particulars of claim reads as follows:
“
5.
The collision was caused solely by the negligent driving by the
Defendant’s insured driver he having been negligent in
one or
more of the following respects:
He failed to keep any, alternatively an adequate lookout and/or;
He failed to keep the vehicle, which he was driving under proper
control and/or;
He drove at a speed, which was excessive in the circumstances
and/or;
He failed to apply brakes of his vehicle timeously, adequately
or at all and/or;
He failed to remain in his lane;
He failed
to avoid the collision when, by exercise of due and reasonable
care, he could and should have done so.
He drove his vehicle whilst under the influence of alcohol.
He failed
to stop at a red robot, alternatively stop street.
”
[7] The defendant’s plea to paragraph 5 of the plaintiff’s
particulars of claim is as follows:
“
AD
PARAGRAPH 5
:
Should the above Honourable Court find that a collision occurred
as described by the plaintiff in paragraph 4 of her particulars
of
claim, then and in that event, the defendant pleads as follows:
The defendant denies each and every allegation contained in this
paragraph. The defendant specifically denies that the driver
of
motor vehicle with the registration number JYL 499 GP, S A Gani
(‘the insured driver’) was negligent as alleged
or
otherwise.
Alter
natively
to paragraph 5.1 supra
,
and in the event of the above Honourable Court finding that the
insured driver was indeed negligent as alleged or otherwise
(which
is denied), then and in that event, the defendant denies that such
negligence was a cause of the collision and pleads
that the sole
cause of the collision was the negligence of the plaintiff who was
negligent in one or more of the following
respects:
She failed to keep a proper lookout;
She
failed to have due regard to motorists in particular, the insured
driver;
She failed to take adequate, or any cognisance of the traffic
carried along the stretch of road in question, and more
specifically,
took no cognisance of the insured vehicle;
She
failed to ensure that she was appreciably visible to motorists, in
particular, the insured driver;
She failed to allow the insured driver a wide berth;
She
entered the road without first ascertaining whether it was safe to
do so and as it so happened at an unsafe and inopportune
moment;
She failed to pay adequate, due or any regard to what was
happening in her immediate vicinity, and more specifically, to the
approach of the insured vehicle;
She failed to avoid the collision when by the exercise of due
and reasonable care she could and should have done so.
5.3
Alternatively to
paragraphs 6.1 and 6.2 supra
,
and in the event of the above Honourable Court finding that the
insured driver was negligent as alleged or at all (which is denied)
and that such negligence contributed to the collision (which is also
denied), then and in that event, the defendant pleads that
the
plaintiff was contributory negligent in one or more of the respects
set out in paragraph 5.2 supra, and that any claim which
the
plaintiff may have should be reduced in accordance with the
provisions of the Apportionment of Damages Act 34 of 1956 as
amended.
”
[8] It is
common cause that on 13 May 2007 at Bezuidenhout Valley,
Johannesburg, the plaintiff, while a pedestrian, was involved
in a
collision with the insured motor vehicle driven by the insured
driver.
[9] The
plaintiff led the evidence of three witnesses including herself. The
other two witnesses were Ms. Numpilo Sithole (“
Ms.
Sithole
”),
who was present with the plaintiff when she was run over by the
insured motor vehicle, and an independent witness, Ms.
Cindy Nake
(“Ms Nake”). The insured driver, Mr. Shabir Gani, and
his cousin, Mr. Mohamed Taahir Gani (
“Mr
Taahir
Gani
”)
who was a passenger in his motor vehicle when the accident occurred,
testified on behalf of the defendant.
THE
PLAINTIFF’S
EVIDENCE
[10] The
plaintiff testified that she and her friend, Ms. Sithole, had taken a
taxi from work on the afternoon of 13 May 2007.
They alighted from
the taxi at the junction of Third and Kitchener and waited on the
southern side of Kitchener for the red traffic
light to turn in their
favour before crossing the road.
[11]
Kitchener has two lanes running from West to East and two lanes
running from East to West. There is no island in the middle,
but a
barrier-line in the middle of the road. It is common cause that each
of the four lanes is about 3 metres wide. The plaintiff
explained
that they crossed Kitchener when the light turned green for them.
They crossed the road at the pedestrian crossing in
a northerly
direction. They were walking side by side and were holding hands,
with plaintiff on Ms. Sithole’s right. They
walked at a normal
pace to ensure their safe crossing of Kitchener before the traffic
light turned red again.
[12]
Plaintiff further testified that whilst they were crossing the road,
two motor vehicles were stationary at the junction. There
was a taxi
and a sedan and she positioned the vehicles, one behind the other on
the far northern lane, west of the junction.
[13]
Plaintiff indicated the point of impact by the letter “A”
on the sketch-plan, marked Exhibit “C”.
This is about
one-third across from the far northern lane of Kitchener and inside
of the marked pedestrian crossing.
[14] She
testified that she saw the insured vehicle moments before the
collision, but was convinced that it would stop as the light
was
green and in her favour. However, the next thing she recalled was
the impact; how she was flung into the air; how she tried
to stand
up where she fell, but was unable to do so, as her left leg was ‘
not
there any more
’,
meaning that it was traumatically severed from her body during the
collision.
[15] Shortly
after her admission to hospital, her left arm was amputated just
below the shoulder, and she remained in hospital
for two months
before being released. The loss of her limbs has left plaintiff
practically helpless and dependent on others, particularly
when she
takes a bath, uses the toilet or goes shopping. She has no balance
and is unable to perform even the simplest of tasks.
She also
explained how the collision has impacted on her life generally. In
this regard, she explained that a short while after
her release from
hospital, her husband had abandoned her.
[16] During
cross-examination, plaintiff appeared unsure of the position of the
vehicles. Apart from certain concessions, she remained
confident
about the point of impact. Although plaintiff was not an ideal
witness she was adamant that the traffic light turned
green and that
she had ensured that it was safe before crossing the road. She
indicated that she saw the vehicle when it was about
35 metres away.
When it was put to the plaintiff, by Mr Motala, appearing on behalf
of the defendant, that the insured driver
will testify that the robot
was green for him when he neared and crossed the junction; that the
driver saw plaintiff approaching
and hooted; that there had been no
cars where plaintiff indicated there had been; that there was a
vehicle beyond the intersection;
that the driver swerved to the left
and plaintiff thereupon walked into the vehicle; that there was no
damage done to the front
of the car; and that the insured driver was
in the right lane, the plaintiff denied the insured driver’s
version.
MS.
SITHOLE’S
EVIDENCE
[17] Ms.
Sithole confirmed the plaintiff’s version, and that of the
independent witness in all material aspects, and particularly
on the
point of impact; the lane in which the insured driver was travelling;
and that he did not stop after the collision but only
returned to the
scene of the accident almost an hour later. She was also adamant
that the plaintiff did not walk into the insured
vehicle but that she
was knocked down by the front of the vehicle. She said that she
first the insured vehicle when it was approximately
50 metres away,
and thereafter at 35 metres away. Ms. Sithole described the reaction
time that was available to both plaintiff
and herself prior to the
collision having taken place. The evidence of both the Plaintiff and
Ms Sithole, which is undisputed,
is that they saw the vehicle
approach when it was about 35 metres (and approximately 1.8 seconds
away from them) but had no reason
to believe that it was going to run
them over as the traffic light was in their favour.
Ms
Sithole explained how she miraculously managed to take a step
backwards and was saved from being collided into, and although
she
called out to the plaintiff to alert her to the approaching car, it
was much too late because plaintiff had already taken that
inevitable
step and the insured vehicle had collided into her.
MS
. CINDY NAKE’S
EVIDENCE
[18]
Ms.
Cindy Nake, a 14 year old schoolgirl, testified how she and her
mother were walking from church on the south side of Kitchener
when
the collision occurred. As they approached the junction of Kitchener
at the time of the collision, she observed two women
waiting for the
traffic light to change in their favour. When the traffic light
changed in their favour, she saw them crossing
the road, and when
they were about half way across the road, she heard a car approach
from behind her, travelling in a westerly
direction. Ms Nake was
certain that the insured car was travelling in the far northern lane
of Kitchener; that it did not hoot
to alert the plaintiff and Ms
Sithole to its approach; that the insured driver did not stop
subsequent to the collision, but proceeded
to drive away until he was
out of sight; that the insured driver did not swerve to avoid
colliding into the plaintiff; and lastly
that the traffic light was
red, and against the insured driver when the his vehicle collided
into the plaintiff.
MR SHABIR GANI’S EVIDENCE
[19]
Mr
Gani, the insured driver, testified that he was driving from his
house, which is about a kilometre away from where the accident
occurred, to his mum’s house in Observatory. His cousin Taahir
Gani had accompanied him on this trip. As he approached the
intersection of Third and Kitchener, he was travelling at a speed of
between sixty to seventy kilometres per hour. He was travelling
in an
easterly direction, in the right hand lane of Kitchener. As he
approached the intersection of Kitchener and Third, and from
about
fifty kilometres away, he observed the robot to be green and in his
favour. He also observed a vehicle travelling in the
right hand lane,
which he believed to be the taxi which dropped off the plaintiff and
Ms Sithole. As he approached the intersection
of Kitchener and Third,
he also observed the plaintiff and Ms Sithole crossing the road. He
later said that he observed the plaintiff
crossing from point “P”
on the sketch plan in a diagonal direction, and Ms Sithole waited on
the pavement.
[20]
He was about 25 metres away from the plaintiff when he saw her
crossing the road. He said he saw her crossing the road but did
not
think that she will cross over the whole road as the traffic light
was in his favour. He said that as he began to cross the
intersection, she was already in the middle of the road and he was of
the view that her handbag or item of clothing got caught
on the
review mirror on the right-hand side door of his car. This made her
‘
twirl
around
’
against the door, thus damaging the back door with her body weight.
On being asked what he did when he first saw plaintiff
approaching
his car, he responded by saying that there was no need for him to do
anything as she was on the side of the car. He
said that after
colliding into the plaintiff, he carried on driving and did not stop
to see what happened. He said he attempted
moving to the left lane in
order to stop but there had been a taxi parked there which prevented
him from stopping. He thereafter
said that he did not do anything
because it was too late.
[21] On being
asked again by Mr Motala what he had done when he first saw the
plaintiff crossing the road, he responded by saying
that when he
first saw the plaintiff he was driving in an easterly direction on
Kitchener. He saw her take one or two steps from
the pavement onto
the road, but did not think that she was going to cross the road. He
stated further that when he was unable
to pull over to the side of
the road after the accident, he turned left into Fourth Street and
left again into Fifth Avenue, and
left into Kitchener. It took him
about two minutes to return to the scene of the accident. On arriving
at the scene of the accident,
he immediately approached the plaintiff
who he described to be in a bad condition. He immediately phoned
112, the emergency response
number. He also called his brother to
inform him about the accident, and his brother arrived at the scene
of the accident approximately
ten minutes later. He said that he
remained at the scene of the accident until the police and the
ambulance arrived. His cousin
Taahir was also with him.
[22] He said
that he had given a written statement to the police officer present
at the scene of the accident. On being asked what
damage was caused
to his car, he said that the review mirror on the front driver’s
door was damaged and that the rear right
passenger door and window
was also damaged when the plaintiff hit into the car. Finally, on
being asked if there was anything
that he could do to avoid the
accident he said “
no
”.
MR
TAAHIR GANI’S
EVIDENCE
[23] The
final witness to testify on behalf of the defendant was Mr Taahir
Gani, who sat in the front passenger seat of the insured
vehicle at
the time of the collision. Other than confirming that he was the
front seat passenger in the vehicle at the time of
the collision, and
that Mr Shabir Gani was the driver of the vehicle, there was very
little else that Taahir was able to remember.
ANALYSIS OF EVIDENCE
[24
]
Mr Van der Sandt, appearing on behalf of the plaintiff, submitted
that I must reject the evidence of the insured driver as he
was
neither credible nor reliable and that his evidence was highly
improbable. I am inclined to agree with Mr Van der Sandt for
the
following reasons. The insured driver was an extremely poor witness.
He was bent on avoiding all blame and did not hesitate
to twist the
truth in order to cast doubt on the version of the plaintiff, and the
witnesses called to testify in support of her
version. There were
also numerous internal contradictions between the insured driver’s
evidence-in-chief and his evidence
under cross-examination. Firstly,
he changed his evidence in relation to where the plaintiff was when
he first saw her prior to
crossing the road. He said that the first
time that he saw her she was already crossing the road and, when
asked wheter she was
on the pavement when he first saw her, he said
“
I
can’t exactly remember
”.
Secondly, the insured driver’s version was inconsistent with
the version which Mr Motala put to the plaintiff and
Ms Sithole under
cross-examination. Mr Motala had put to the plaintiff, in
cross-examination, that the insured driver will testify
that:
(a) when he
first saw the plaintiff approaching his car he hooted and swerved to
the left, but plaintiff had nevertheless walked
into his vehicle;
and
(b) he stopped
at the scene of the accident immediately thereafter.
This was,
however, not the insured driver’s version in
examination-in-chief. It therefore came as no surprise that, under
cross-examination, he denied that he hooted to alert the plaintiff of
his approach, and that he swerved to the left in order to
avoid
colliding with the plaintiff.
[2
5]
The insured driver’s version, in evidence-in-chief, that the
plaintiff crossed the road from point “P” on
the sketch
plan in a diagonal direction, and walked into his car thus causing
her bag or item of clothing to become entangled
with the review
mirror on the front right-hand door, was a completely new version
that was not put by Mr Motala to either the
plaintiff or her
witnesses. In addition, the insured driver admitted, under cross
examination, that before the actual collision
occurred there was no
indication that the plaintiff was going to walk into his car and
therefore there was no need for him to swerve
to avoid her, hoot or
do anything else. The insured driver also ultimately admitted, under
cross-examination, that his version
was implausible.
[26]
Furthermore, even though the accident report provided vital clues as
to how the accident occurred, the insured driver failed
to explain,
under cross-examination, why he did not take photographs of the
damage, which was caused to the insured vehicle. Again,
although the
officer’s accident report described the damage to the insured
vehicle as being to its right-hand side, the defendant
did not call
him to give evidence at the trial, and no explanation was provided as
why this was not done.
[27] Mr Taahir
Gani, the second witness called to testify on behalf of the defendant
was also of not much assistance to the court,
stating repeatedly that
he did not remember much about the actual accident itself. He,
nevertheless, maintained that the traffic
light was green, and in the
insured driver’s favour. However, under cross-examination he
conceded that he had assumed that
the traffic light was green because
the insured drive did not slow down or stop. Accordingly, it was
clear from Mr Taahir Gani’s
testimony that he had not observed
the traffic light to be green, and in the insured driver’s
favour.
[28
] I
accordingly reject the evidence of both the insured driver and his
cousin Mr Taahir Gani in total. The evidence was replete
with
contradictions and inconsistencies, and when compared to the version
of the plaintiff and her two witnesses, was overwhelmingly
improbable
and simply untrue.
[29] Mr
Motala, on behalf of the defendant contends that the plaintiff’s
testimony was replete with inconsistencies and therefore
should be
rejected.
[30
] Now
although I am prepared to accept that the Plaintiff was not an ideal
witness, and was unable to remember details about the
position of
certain cars on the road prior to the accident, it is important for
this Court to view her recall of the events immediately
prior of the
accident in the context of the trauma which she experienced during
the accident. Having regard to the fact that her
leg was
traumatically severed from her body during the accident, and that she
was rendered unconscious, it would be unreasonable
to expect her to
remember the minute details of the events preceding the accident.
Insofar as Mr Motala contends that her evidence
should be rejected
because there were inconsistencies between the evidence which she
gave in-chief and that which appeared in the
written statement which
she had given to the police officer while she was in hospital, I am
of the view that little weight should
be given to the written
statements of the plaintiff, Ms Sithole, and the insured driver as
the evidence shows that they were drafted
by police officers who
clearly failed to give these persons an opportunity to confirm the
correctness of their statements. I am
unable, in the circumstances,
to reject the plaintiff’s evidence on this basis alone.
[31
]
Accordingly, I am of the view that other than a few minor
inconsistencies in the plaintiff’s evidence, her evidence was
consistent in all material respects with that of Ms Sithole and Ms
Nake and, in particular, that the traffic light turned green
and was
in the plaintiff’s and Ms Sithole’s favour, that they
ensured that the road was safe before crossing, and that
they saw the
insured vehicle when it was about 35 metres away from them. The
plaintiff’s evidence was also consistent with
that of Ms
Sithole and Ms Nake in relation to the point of impact of the
collision.
[32
]
The defendant contends that that the Court must reject the version
of Ms Nake because she was only 11 years old at the time,
and her
version differs from that of the plaintiff and Ms Sithole. I
reiterate, that Ms Nake’s version was consistent with
that of
the plaintiff and Ms Sithole in all material respects, and in
particular that the traffic light was green and in their
favour when
they crossed the road, and that the insured driver did not stop after
the collision. Ms Cindy was a model witness.
She was sure of
herself and very confident about her observations. Her evidence was
completely unbiased, independent, candid
and coherent. She did not
know the plaintiff and had no interest in the matter.
[33] Although
the defendant asked this Court to reject the evidence of Ms Nake on
the basis that she was an 11 year old minor,
its counsel failed to
cross-examine her on crucial issues which he had put to the plaintiff
and Ms Sithole relating to the insured
driver’s version. This
failure accordingly prevents the defendant from disputing the truth
of Ms Nake’s testimony.
The
dicta
of Claassen J in
Small
v Smith
1954 (3) SA 434
(SWA) is apposite in this regard: (at 438):
“
It
is, in my opinion, elementary and standard practice for a party to
put to each opposing witness so much of his own case or defence
as
concerns that witness, and if need be, to inform him, if he has not
been given notice thereof, that other witnesses will contradict
him,
so as to give him fair warning and an opportunity of explaining the
contradiction and defending his own character. It is
grossly unfair
and improper to let a witness’ evidence go unchallenged in
cross-examination and afterwards argue that he
must be disbelieved.
”
[34] In the
circumstances, I am of the view that the evidence of the insured
driver, and Mr Taahir Gani, who testified on behalf
of the defendant
was completely false and should be, and is rejected by this Court.
The only inference to be drawn from the need
of these two witnesses
to give false evidence, is that the driver did not keep a proper
lookout (
Rabie
v Kimberley
1991 (4) SA 243
(NC) at 259D-F).
[35
]
The reasonable man in the position of the insured driver,
approaching a robot-controlled intersection, would have foreseen the
possibility of a collision, and would have, in the circumstances,
kept a proper lookout for pedestrians crossing that intersection
(
Rondalia
Assurance Corporation of South Africa Ltd v Mtkombeni
1979 (3) SA 967
(A) at 972B-D;
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E).
[36
]
It was accordingly the duty of the insured driver when approaching
the intersection of Bezuidenhout and Third to have kept a
proper
lookout for pedestrians who were crossing the road, or likely to be
crossing the road. Our courts have consistently held
that a driver
is required to exercise reasonable care and vigilance not only
towards a pedestrian he sees, or ought reasonably
to see, on or near
the road; he is obliged to exercise the same reasonable care and
vigilance towards an unseen pedestrian whose
presence he should
reasonably foresee or anticipate because, for example, of the
proximity of a school or of a passenger bus (
Adams
v Sunshine Bakeries
1939 CPD 72
at 76;
Santam
v Nkosi
1978 (2) SA 784
(A) at 791F-H), or for that matter a robot controlled
pedestrian crossing.
[37
] The
evidence shows that insured driver travelled the route, which he
travelled when the accident occurred regularly thus being
aware that
the intersection, at which the collision occurred, was robot
controlled. It also shows that on a couple of previous
occasions he
had skipped the red robot at this intersection, and was caught by the
traffic camera located at the intersection.
Armed with the knowledge
that the intersection was robot controlled, one would have expected
him to have exercised reasonable care
and vigilance when approaching
it. I am, therefore, of the view that the driver was negligent in
failing to keep a proper look-out
for pedestrians when he approached
the intersection of Third and Kitchener. Had he done so, he would
have been able to avoid colliding
with the plaintiff. I am
accordingly of the view that the insured driver should reasonably, in
all the circumstances, have foreseen
the possibility of a collision
with the plaintiff, and should have taken reasonable steps to guard
against such an occurrence.
His failure to have done so constitutes
negligent conduct
[38
] This
then brings me to the question of whether any form of apportionment
should be applied based on the plaintiff’s conduct.
It is
argued by Mr Motala, for the defendant, that it is not the
defendant’s contention that the insured driver is blameless
and
that he did not contribute in any manner to the cause of the
collision, but that the plaintiff must bear responsibility for
the
collision as well, as she should have foreseen that a collision would
occur between herself and the insured motor vehicle for
the following
reasons.
[39
] She
testified that as she began to cross Kitchener Road, she noticed the
insured vehicle approaching at high speed, at which point
it was
approximately 35 metres away. Despite the speed of the insured
vehicle, she continued walking because she assumed it would
stop as
the robot was green for her. It is, thus, submitted by the defendant,
that even if the Court accepts that the robot was
green and in
plaintiff’s favour, it is evident that the plaintiff was
negligent as a pedestrian is required to maintain a
proper look-out,
and must first reconcile himself or herself that it is safe to
proceed across the road before doing so. Hence,
merely assuming that
a vehicle would stop does not render safe passage.
[40
] The
primary contention for the defendant is that Ms Sithole, who was
walking closest to the insured vehicle, managed to avoid
the
collision. Ms Sithole testified, in this regard, that she first
looked at the insured vehicle when it was approximately 50
kilometres
away, and under cross examination stated that she kept looking at it
because she wanted to understand why it was travelling
at a high
speed when the robot was not in its favour. She then stopped looking
at it. By the time she looked again it was very
close and she
realised that it was not going to stop at the robot, and was able to
take a step back, and avoid the collision. It
is therefore the
defendant’s contention that Ms Sithole was able to avoid the
collision simply by being aware of the approach
of the insured
vehicle, and by keeping it under observation intermittently. It
contends further, that the fact that Ms Sithole
was able to take a
step back and avoid the collision demonstrates that had the
plaintiff, similarly, kept the vehicle under observation,
she would
have realised that the insured vehicle would not stop, as assumed,
and she would have been able to avoid the collision
in its entirety.
[41
] On
a consideration of the plaintiff’s testimony, and that of Ms
Sithole and Ms Nako, it is clear that she had waited on
the pavement
until the robot turned in her favour and after looking left and right
she, together with Ms Sithole, stepped onto
Kitchener, and proceeded
to cross the road. Up to this point no fault can be found in her
conduct. She did testify, however, that
she noticed the insured
vehicle approaching at high speed when it was about 35 metres away
but continued to cross as she assumed
that it was going to stop as
the robot was in her favour. I am of the view that the Plaintiff
was not negligent in failing to
observe the vehicle intermittently.
The traffic light was in her favour. She crossed the road at a time
and place where she was
entitled to. She had the right of way, and it
was therefore not unreasonable for her to have assumed that the
insured driver would
stop at the intersection. I am of the view that
the fact that Ms Sithole was able to avoid the accident, because she
observed
the insured vehicle intermittently, should not be used to
cast fault on the plaintiff. It is not disputed that when Ms Sithole
and the plaintiff saw the insured vehicle approach, it was
approximately 35 metres (or under two seconds away from the
intersection).
At a distance of about 35 metres and at a speed of
about 70 kilometres per hour (or the equivalent of 19.44 metres per
second)
their reaction time was no more than 1.8 seconds.
[42
] Accordingly,
at the time that Ms Sithole realised that the insured vehicle was not
going to stop it was approximately 1.8 seconds
(or less) away. She
managed miraculously, in that moment, to step backwards and avoid the
collision. Between the time that she
realised that the insured
vehicle was not going to stop, and taking a step backwards, the
insured vehicle was approximately 1.8
seconds away. Although she
called out to plaintiff to alert her to the approaching vehicle, it
was too late as plaintiff had already
taken the inevitable step
forward - and the insured vehicle collided with her. On the
probabilities, the insured driver would have
missed colliding with Ms
Sithole by just a breath of a hair. It was a matter of ‘pure
chance’ that Ms Sithole was able
to step back when she did. It
was highly improbable, in the circumstances, that the plaintiff would
have been able to escape the
collision in less than 1.8 seconds.
Hence, I am agreement with Mr Van der Sandt that the miracle which
saved Ms Sithole should
not be used in the insured driver’s
favour for purposes of apportioning damages.
[43
] In
the circumstances, I am of the view it was not unreasonable for the
plaintiff to assume that the insured driver would exercise
due care,
and stop at the robot-controlled intersection. There was no duty on
her to keep looking at the insured vehicle while
crossing the road as
the green light was in her favour She had the right of way and was
therefore entitled to assume that the
insured driver would stop at
the intersection.
[44
] Accordingly,
having regard to the fact that the plaintiff crossed the road at a
robot controlled intersection, when the green
light was in her
favour, and that there was a duty on the insured driver to stop at
that intersection, I am of the view that the
plaintiff was neither
reckless nor negligent and no apportionment should be applied against
her.
[4
4] In
the result I find that the Plaintiff has discharged the onus of
proving that the insured driver was negligent and soley responsible
for the collision.
QUANTUM OF DAMAGES
[
45] It
is common cause that, as a result of the collision with the insured
vehicle, the plaintiff sustained a traumatic amputation
above the
knee of her leg left during the collision, as well as extensive
injuries to her left arm necessitating the amputation
of the arm
shortly after the collision, in hospital.
[4
6] Dr
JA Smuts, the Neurologist is of the view that plaintiff sustained a
mild concussion, but there is nothing to suggest brain
injury. The
severity of her headaches is moderate to severe and can be classified
as post-traumatic headaches. Amputation related
problems are a
painful right arm and shoulder, and an over-use of right arm that
leads to pain. She also has a form of phantom
pain in her left stump.
It is doubtful whether plaintiff would be able to obtain gainful
employment due to the physical disability
related to her double
amputation.
[4
7] Dr
JJ Van Niekerk and Dr A Thomas, the Orthopaedic Surgeons, are of the
view that as a result of the double amputations problems
in later
life should be expected, and there will be episodes of increasing
pain. She will always walk with some difficulty but
with the
appropriate prosthetic fittings, this can be decreased to a degree.
With regards to her arms, she also needs to be fitted
with a better
fitting prosthesis. She is permanently unfit for any physical work,
and is not suited to clerical work. She will,
therefore, in all
probability remain unemployed for her whole life.
[
48] Dr
APJ Botha, the Specialist Physician, is of the view that the
Plaintiff clearly needs a rehabilitation regime after amputation
that
would entail a multi-disciplinary approach. This would include
attention to the stumps of the left arm and left leg, prosthetic
care, psychotherapy and psycho-pharmalogical treatment as well as
aspects of mobility and transfer. From a medical point of view,
the
long term consequences of being a double amputee have not been
documented clearly. The usual complications of major limb amputation
include pain, neuroma, phantom phenomena, prosthetic fitting problems
and psychological problems.In addition there are long term
effects as
a result of the altered biomechanics and unusual strain on the
proximal joints with an increased incidence of osteoarthritis.
Due to
decreased mobility, obesity tends to develop in amputees. Although
she is a young, relatively healthy person without cardiovascular
risk
factors or an abnormal metabolic profile, the long term haemodynamic
effects of double amputation cannot be ignored in terms
of the long
term prognosis. Given her level of training and past work experience,
she is probably not an ideal candidate for any
type of employment. It
is expected that her life expectancy will be reduced by approximately
5 years.
[49] Mr G.
Wilson, the Counselling Psychologist, is of the view that the
plaintiff’s life changed dramatically after the accident
as she
lost her leg and arm. As a result of her disability and loss of
livelihood, her husband ended their relationship. She is
unable to
care for her children as a result of which they do not stay with her
permanently. Her disability makes it difficult for
her to work. She
regularly experiences pain and discomfort. The overall picture is one
of permanent and significant disability
having led to a significantly
diminished quality of life. Although she is not suffering from any
clinical personality disorders,
her disability creates significant
stress and severely
limits the quality of life. She requires psychotherapy.
[
50] Ms.
M. Van Niekerk and Ms. R.Leshika, the Occupational Therapists, are in
agreement that the plaintiff requires twenty two sessions
of
occupational therapy to facilitate optimum independence in daily
activities and to facilitate functional mobility skills with
the new
prosthetic devices, and that at least ten sessions should be reserved
for home and work visits, should plaintiff secure
employment in the
future. They also recommend the intervention of an orthotist,
biokinetist, physiotherapist, psychiatrist, and
a clinical
psychologist, and are in agreement that she would require assistance
with household chores on a weekly basis. They note
that the plaintiff
was employed at a carwash, where she washed cars, for approximately
two weeks before the accident. The accident
interrupted her work, and
she has since been employed. Ms Leshika is of the opinion that with
the recommended intervention, including
occupational therapy, the
plaintiff should be able to meet the demands of her pre-accident work
in the car wash and tuck shop.
Ms Van Niekerk is, however, of the
view that the Plaintiff would not be able to meet the demands of her
pre-accident work in the
car wash and tuck shop. She instead
recommends that the plaintiff be allowed financial aid for her choice
of studies.
[
51] Dr
J Greeff and Ms. A. Jamotte, the Industrial Psychologists are in
agreement that pre-accident the plaintiff would have remained
gainfully employed on an unskilled level in the open labour market
until her retirement at the age of sixty years. However, Ms
Jamotte
remains of the view that there would have been periods when the
plaintiff was unemployed. Post-accident, they agree that
within the
parameters of the plaintiff’s injuries and the contingencies
related thereto, that she is unemployable in the
open labour market
on the same or on a similar unskilled level. They agree that the
plaintiff is unemployable, and that in terms
of future loss of likely
earnings the median of the annual earnings level of R11 601.00 –
R23 100.00 of R17 350.00 (18% of
sample) is recalculated over a
period of thirty years until retirement age of sixty years with an
added annual income of 8%.
[
52] The
Actuaries, Mr IJ Minaar and Mr GA Whittaker agree to the following
results in respect of past income:
Past value of income:
R46 119.00 (normal life expectancy, and reduction of life expectancy
of 5 years.
Present value of future income:
R330 219.00 (normal life expectancy) and R316 400.00 (reduction in
life expectancy of five years).
They also agree that the value of any State Disability Grant payments
that the Plaintiff has received to date must be deducted
from her
loss of income.
According to
Mr Whittaker, in a report dated 10 June 2010, the total disability
grant, which has been paid to the Plaintiff to 10
June 2010, has
amounted to R32 640.00. These are in respect of payments made from
August 2007 to 31 May 2010. The next payment
due is at the end of
June 2010
in
an amount of R1 080 per month. Increases are usually granted in April
of each year. The last increase granted in April 2010 was
6.93%.
LIFE EXPECTANCY
[
53]
The Defendant postulates a 5 year reduction of plaintiff’s life
expectancy, on the basis of the expert evidence of Dr
A.P.J. Botha,
its Specialist Physician. Dr Botha notes in his report that the
plaintiff, as a result of her present and future
difficulties,
particularly the operations and replacements of prosthesis envisaged,
will suffer a reduction of life expectancy
of 5 years. What this then
translates into is whether the present value of plaintiff’s
future income would be R330 219.00
or R316 400.00 (before the
application of contingencies).
[
54] The
plaintiff urges me, in this regard, to disregard Dr Botha’s
conclusion that the plaintiff will suffer a reduction
of life
expectancy of 5 years, as it is not only arbitrary but also
self-destructive of his own report. In this regard, Dr Botha
concludes in his medico-legal report that in view of the long term
adverse effects of multiple amputations notably the haemodynamic
vascular consequences, the eventual impact of obesity and reduced
mobility, it is estimated that the plaintiff’s life expectancy
will be reduced by approximately five years. I am in agreement that
Dr Botha’s report is self-destructive of his report
because he
states as follows:
“
Although
Ms Mthetwas is a young, relatively healthy person without
cardiovascular risk factors or an abnormal metabolic profile,
the
long term
haemodynamic
effects of double amputation cannot be ignored in terms of long-term
prognosis.
12.
FUTURE MEDICAL TREATMENT:
There are no recommendations from a medical point of view other
than standard prophylactic measures to reduce her cardiovascular
risk
eg adherence to a low fat diet, timeous treatment of hypertension and
regular follow up.”
It is
therefore unclear why, if the
plaintiff
simply adheres to a low fat diet, and get
s
treated
for hypertension,
her
life expectancy would be reduced by 5 years. I am, therefore,
unpersuaded by the evidence of Dr Botha, and accordingly must
reject
it. I am, however, persuaded by the evidence of Dr JJ Van Niekerk,
the plaintiff’s Orthopaedic Surgeon, Dr A. Thomas,
the
defendant’s Orthopaedic Surgeon, and Dr Smuts, the
plaintiff’s Neurologist, who are all in agreement that the
plaintiff’s life expectancy has not been negatively influenced
by the accident. Accordingly, the present value of plaintiff’s
future income would be R330 219.00 (before the application of
contingencies).
CALCULATION OF CONTINGENCIES
[55
] Mr
Minaar, the plaintiff’s Actuary, applied a 5 per cent
contingency deduction to the Plaintiff’s accrued loss of
earnings, thus rendering a total of R108 570, and 10% to the
Plaintiff’s prospective loss of earning thus rendering a total
of R753 127.
[5
6] It
is a well established principle that the mathematical calculation of
the value of income but for the injuries, as well as
the value of the
income having regard to the injuries together with the difference
between the two calculations often to be adjusted,
by appropriate
contingency allowances, to arrive at a fair and just determination in
the circumstances of the particular case.
The determination and
application of general contingencies is, therefore, an essential
responsibility of the trial court (
Shield
Insurance Co Ltd v Sodoms
1980 (3) SA 134
(A).
[5
7] In
relation to plaintiff’s earnings, having regard to the injuries
sustained in the collision, it is clear from a consideration
of the
expert reports that there is agreement that the plaintiff is
unemployable in the open labour market at the semi-skilled
level that
she was employed in prior to the accident. The only expert with a
contrary view is Ms Leshika, the defendant’s
Occupational
Therapist. In view of the overwhelming evidence that the plaintiff is
unemployable, I am unable to accept Ms Leshika’s
opinion that
with the necessary intervention, including occupational therapy, the
plaintiff should be able to meet the demands
of her pre-accident work
in the car wash and tuck shop.
[
58]
In relation to plaintiff’s uninjured earnings, it is common
cause that, but for the accident, she would have worked until
a
retirement age of 60, earning an amount of R330 219.00. However, it
is the defendant’s contention that the Court must have
regard
to the fact that although the plaintiff was 28 years old at the time
of the collision, she only had one period of employment,
which lasted
for three years prior to being employed at the carwash. Hence, it is
submitted that, as per Ms Jamotte’s (the
defendant’s
Industrial Psychologist) evidence, there are likely to be future
periods of unemployment as well.
The d
efendant
also contends that I should apply a further contingency deduction as
the plaintiff will, as a result of not working, be
spared the costs
of travelling to and from work. I am of the view that allowance must
be made for any savings to the plaintiff
as a result of not having to
travel to and from work. Now, while Mr Minnaar, the plaintiff’s
Actuary, applies a 10 per cent
contingency deduction, which takes
into account contingencies in life such as sickness and future
unemployment (which takes care
of the defendant’s contention of
future periods of unemployment), it does not make allowance for
savings in relation to travel
to and from work. I am, therefore, of
the view that it would be fair and just to apply a further 5%
contingency deduction to plaintiffs
future loss of earnings to make
allowance for the plaintiff’s savings in relation to travel to
and from work.
[59] The
plaintiff, however, urges me not to apply any contingency deduction
to her prospective loss of income for the following
reason. Although
the plaintiff testified that she earned R2400.00 a month, Ms Greef
and Ms Jamotte, the Industrial Psycholgists
took the median earnings
of an unskilled or semi-skilled worker, such as the plaintiff, to be
R17350.00, thus ignoring that her
actual earnings amounted to
R24000.00 per annum. The plaintiff testified, in this regard, that
she earned in the region of approximately
R600.00 per week between
her waitressing job, and working at the car wash. I am, however,
unpersuaded by the plaintiff’s
argument in this regard, as it
is clear from the actuarial report of Mr Minaar, that he did take
into account that, at the time
of the accident, the plaintiff earned
R31 200.00 per annum, which translates into R600.00 per week or R2
400.00 per month. In the
circumstances, I consider that a 15 per cent
contingency deduction from the Plaintiff’s prospective loss of
income, and a
5 per cent deduction from her accrued loss of income
is justified, thus rendering an accrued loss of R108 570, and a
prospective
loss of R715 470.65 less R35 880 (being the total state
disability grant, which has been paid to Plaintiff for the period 31
August 2007 to 31 August 2010). Accordingly, and having regard to the
joint minute of the actuaries, I award the plaintiff an amount
of R
679 590.65 for loss of future earnings.
GENERAL DAMAGES
[6
0] It
is clear on consideration of all the evidence before this Court that
the Plaintiff suffered pain, suffering, discomfort and
loss of
amenities in the months following the accident, and continues to do
so some 3 and a half years after the accident. She
sustained a
traumatic amputation of the upper part of her left tibia and fibula
during the collision, which occurred on 13 May
2007. On the same day
she underwent a guillotine amputation of her upper arm and lower leg.
She had been fitted with ill-fitting
artificial limbs (arm and leg)
in August 2007.She currently walks with difficulty, and with
crutches. Her prosthetic leg is of
a very rudimentary nature, and is
ill-fitting, heavy and uncomfortable. She experiences phantom pain in
the amputation stump of
her leg, and also experiences intermittent
headaches. Her prosthetic left arm is simple, and covered with a
glove as she has not
been fitted with a skin covered hand. Her hand
is heavy and unusable, and she experiences intermittent pain in the
amputation stump
of her left arm. In view of the double amputation,
problems in the plaintiff’s later life are anticipated, and
there will
be episodes of increasing pain and comfort. The pain
worsens in inclement weather conditions
[
61]
The plaintiff is effectively permanently disabled, and entrapped in
a handicapped body. Her work, social, and family life
has been
severely curtailed as a result of her double amputation, and she has
lost her independence. Her husband, and other family
members had
abandoned her after the accident, and she now needs assistance with
childcare, household chores, shopping etcetera.
She used to be play
basket ball socially, and jogged regularly before the accident, but
has never been able to return to any form
of sporting activity. There
is accordingly no doubt that plaintiff’s general enjoyment of
life has been markedly diminished
as a result of the injuries
sustained in the collision, and will continue to do so.
[62] Mr Van
der Sandt submits that, in view of the plaintiff’s double
amputation, the Court ought to show additional sympathy
to the
plaintiff by adjusting the award of general damages for pain,
suffering and loss of amenities upwards. In other words, it
is the
plaintiff’s contention that the cumulative effect of a double
amputation should be calculated per limb as a double
amputation is
more debilitating than a single amputation, thus requiring more
intensive care and maintenance. The plaintiff accordingly
seeks an
award of R750 000 for pain, suffering and loss of amenities arising
out of the above knee amputation of the left leg,
and R300 000.00 for
the below shoulder amputation of the arm.
[6
3] The
defendant, however, contends that the approach of the courts to
general damages, where there are multiple injuries is to
look at the
cumulative effect of the multiple injuries, as opposed to looking at
each injury individually. He then referred me
to a number of cases
dealing with an amputation of the either one leg or two legs, the
most notable being
Ndlovu
v Swaziland Royal Insurance Company
1989 (4E2) QOD 1 (Swl) where the plaintiff, a 25 year old male
chauffeur, sustained severe injuries to both legs necessitating
amputation of both legs above the knee. He experienced considerable
pain. It was anticipated that one of stumps would need further
surgery, and even after the fitting of prosthesis, he would, at best,
only walk a few paces with the assistance of crutches. The
plaintiff
would be confined to a wheelchair for the rest of his life. The court
awarded an amount of R80 000.00 (in 1989) in respect
of general
damages, the current value being R395 000.00.
[64] In the
later case of
August
v Guardian National Insurance Company Ltd 1990 (4E2 )QOD 13 (C),
the
plaintiff, as a result of injuries sustained in a motor vehicle
collision, underwent amputation of the leg above the knee.
The knee
stump was badly mutilated as a result of the injury, and a skin graft
was effected over the stump. The stump was grossly
distorted making
the fitting of an artificial limb difficult, and causing pain,
discomfort, and a limp accompanied by a lateral
sway, which placed
strain on his lower back, leading to degenerative changes in the
lumbar spine. He was unable to continue driving
or repairing his
trucks, and his working life span was reduced. The court awarded an
amount of R60 000.00 in respect of general
damages, the current value
being R259 000.00.
[6
5] In
Smith
v Road Accident
2003 (5D2) QOD 1 (AF), the injured person was a five year old boy,
who sustained a parietal fracture of the right side of the
skull, an
avulsion injury and a traumatic amputation of the entire left arm.The
minor sustained severe pain, shock, and distress
as a result of the
injury. He was admitted to hospital six months later for revision of
the amputation stump, and removal of most
of the residual humeral
head. The absence of the stump rendered the chances of using a
functional prosthesis in the future poor,
but a non-functional
prosthesis resembling a human hand could be considered purely to
improve self appearance and boost self image.
The minor child
displayed behavioural problems, and psychological intervention was
required. No future surgery was indicated, but
the potential for
employment in the open labour market was severely diminished. The
Court awarded R250 000.00 in respect of general
damages, the current
value being R375 000.00.
[
66] The
defendant accordingly contends that a fair and reasonable award for
compensation in respect of general damages in the present
case would
be in the amount of R600 000.00. The plaintiff, however, referred me
to the 2008 unreported decision, of
Etiene,
Elois Wlisbrood Carguijeiro v The Road Accident Fund
,
Case number 07/610, Witwatersrand Local Division,15 March 2008 (at
paragraphs 4), where the Plaintiff, as a result of the motor
vehicle
collision sustained the following injuries and sequelae: a right
below knee amputation; a severe pelvic injury; a broken
left thumb,
lacerations, bruises and abrasions. Zulman J awarded the Plaintiff
R500 000.00 in respect of general damages.
[6
7] Although
these cases have been of some assistance, it is settled law that
“each
case must be adjudicated upon its own merits and no one case is
structurally the same as another...Previous awards offer
only
guidance in the assessment of damages” (Brumage v SA Eagle
Insurance Co Ltd
(C) QOD, Vol IV, E2-33 at
E2-50.
Therefore
having regard to the severity of the plaintiff’s pain,
suffering, discomfort and loss of amenities as described
above, I am
of the view that an award of R800 000.00 in respect of general
damages would be fair and just. It is important to emphasise,
in this
regard, that even if the plaintiff is fitted with new, better fitting
prosthetics and is provided with specialized equipment,
which may
enable her to care for her children, and perform household chores
independently, she will not fully recover from the
injuries sustained
in the collision, and will therefore never gain pre-accident level of
capacity and abilities.
[6
8]
I am accordingly satisfied that the plaintiff has succeeded in
proving her claim for damages in the following amounts:
1. Past loss
of earnings R 11 173.05
2.
Future loss of earnings R 679 590.65
3. General damages for pain, suffering,
discomfort, and loss of amenities
R
800 000.00
R1
490 763.70
[
69]
In the result I grant judgement for the plaintiff against the
defendant as follows:
1. Payment of:
1.1. Past
loss of income R 11 173.03
1.2 Future
loss of income R 679 590.65
1.3 General
Damages R
800 000.00
R
1 490 763.70
2. Interest on
the said amount of R 1 490 763.70 at the rate of 15.5 per cent per
annum, calculated 14 days from date of payment.
3. Cost of suit including the qualifying and preparation costs of:
3.1. Dr J.A
Smuts ( Neorologist)
3.2. Ms M.
Van Niekerk (Occupational Therapist)
3.3. Dr J.
Greef (Industrial Psychologist)
3.4. Mr G.
Wilson (Counselling Psychologist)
3.5. Dr J.J.
Van Niekerk (Orthopaedic Surgeon)
3.6 Mr I.J. Minaar (Actuary)
4. It is
recorded that the defendant has undertaken to provide the plaintiff
with an undertaking in terms of
section 17(4)(a)
of the
Road Accident
Fund Act 56 of 1996
in respect of future medical costs.
F.KATHREE-SETILOANE
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT,
JOHANNESBURG
COUNSEL FOR THE PLAINTIFF: ADV SWWJ VAN DER SANDT
INSTRUCTED BY: BESSINGER ATTORNEYS
COUNSEL FOR THE DEFENDANT: ADV N. MOTALA
INSTRUCTED BY: EVERSHEDS
DATE
OF JUDGMENT: 23 SEPTEMBER 2010