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[2020] ZAGPJHC 327
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S D v Road Accident Fund (4817/2019) [2020] ZAGPJHC 327 (1 September 2020)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE
NUMBER : 4817/2019
In the matter between :
D,
S
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
JUDGMENT
BHOOLA A J:
Introduction
[1]
The plaintiff issued and served summons on the defendant on 11
February 2019 in which he claims damages,
inter alia,
for past
and future loss of earnings and general damages arising out of a
motor vehicle collision that occurred on 14 November
2017.
[2]
At the outset I must note that this determination of the merits and
quantum is made on an unopposed basis. When the matter was
enrolled
for trial on 4 August 2020, it was postponed to the following day to
enable the attorneys for the defendant to participate.
Given that the
defendant had in the months prior to hearing of this matter,
terminated the mandates of its attorneys on record
for most of its
matters, Plaintiff’s attorneys had made numerous attempts to
discuss the matter with claims handlers of the
defendant in order to
establish their attitude to the trial proceeding or the possibility
of settlement. These efforts had not
been met with any response. When
I commenced hearing of this matter I requested that the plaintiff's
attorney should file an affidavit
explaining the efforts made to
secure co-operation from the defendant and having received this, I am
satisfied that the matter
should proceed notwithstanding the absence
of the defendant. It is clear from the pleadings that the plaintiff's
attorney invited
the defendant's representatives to a pre-trial
conference in May 2020 but even then no co-operation was forthcoming.
Thereafter,
he sent numerous emails as well as proposed settlement
terms to the defendant's senior claims handlers and emailed the
notice of
set down to them, but no response was received.
The
issues
[3]
The issues for determination in this trial are:
3.1 the merits of the claim;
3.3 the
sequelae
of the
injuries and their resultant impact on the plaintiff's employability;
3.4 the amount to be awarded for
general damages; and
3.5 the plaintiff's past and future
loss of earnings and loss of earning capacity.
Merits
[4]
The accident report provided when the plaintiff reported the
collision to the South African Police Services on the same day,
records that:
4.1 On 14 November between Owl Road
and Barry Hertzog Road, Auckland Park, he was the driver of a
motorcycle;
4.2 He was travelling along Empire
Road in a westerly direction in the left lane;
4.3 A BMW that was driving parallel to
him started to move towards him without indicating;
4.4 He attempted to avoid colliding
with the BMW, and in the process went over a cab line and collided
with a pedestrian.
[5]
In his statutory affidavit which accompanied his RAF1 form the
plaintiff recounted the collision as follows:
5.1 On 14 November 2017 he was the
driver of a motorcycle travelling along Empire Road in a westerly
direction;
5.2 There was a BMW with unknown
registration number travelling next to him in the right hand lane;
5.3 The BMW changed lanes into the
lane in which the plaintiff was travelling without indicating;
5.4 In an attempt to avoid colliding
with the BMW, the plaintiff swerved and lost control and collided
with a pedestrian.
[6]
The plaintiff pleads that the collision was caused solely by the
negligence of the insured driver in that he,
inter alia
,
changed lanes by moving the BMW into the plaintiff's lane without
observing safety rules, which caused him to swerve and lose
control
of his motorcycle.
[7]
The defendant, in its plea, denies the occurrence of the motor
vehicle collision. It is however established on the facts and
evidence, including hospital and police records, that the plaintiff
was involved in a motor collision on the date, time and place
as
stated above. No statement from the insured driver or any witness has
been presented by the defendant to gainsay the version
of the
plaintiff or to indicate that there was contributory negligence on
the part of the plaintiff. I am therefore satisfied that
the
plaintiff has established on a balance of probabilities that the
collision was caused solely by the negligence of the insured
driver
of the BMW which moved into the lane in which the plaintiff was
riding his motorcycle, without it being safe to do so, causing
him to
take evasive action and lose control. The plaintiff's reporting as
set out above to the defendant and the police are consistent
with his
version of the collision and are in any event not disputed given the
non-appearance of the defendant.
Quantum
[8]
The plaintiff pleads he sustained the following injuries for which he
obtained medical treatment at the Netcare Milpark hospital
where he
was admitted: a T7-T10 spinal process fracture, a T8 anterior
compression fracture, a fractured right femur, abrasions
on his right
elbow, right thigh and right foot.
[9]
He pleads that as a result of the injuries set out above:
9.1 he experienced pain and suffering,
discomfort, loss of the amenities of life and will in future continue
to experience these
as a result of the motor vehicle
collision;
9.2 he currently experiences pain in
his back and right leg, cannot run, cannot walk, sit or stand for
extended periods, and cannot
lift or carry any heavy objects;
9.3 he will continue to require
medical treatment and will incur costs in that regard.
[10]
The plaintiff filed medico-legal reports from its medical experts and
an actuarial report. The defendant did not appoint any
medico-legal
experts nor did it file an actuarial report.
[11]
Dr Preddy, the orthopaedic surgeon records that the plaintiff
sustained the following injuries:
11.1 A midshaft fracture of the right
femur that resulted in shortening of the right leg;
11.2 A soft tissue thoracic spine
injury comprising of a compression fracture of T8 with residual
symptoms;
11.3 A soft tissue lumbar spine injury
resulting in space narrowing, with spondolytic changes most
pronounced at L2/3 and
L3/4 levels;
11.4 A left tibial plateau fracture of
the left knee;
11.5 Various abrasions.
[12]
Dr Preddy's report notes that the spinal injuries result in
persistent daily pain in mid and lower back, and that pain is
aggravated by sitting for long periods of time and climbing stairs
and ladders. The femur fracture has also resulted in shortening
of the leg. Dr Preddy determined the plaintiff's combined whole
person impairment ("WPI") to be 14%, as a result of which
he does not have serious injuries qualifying him for general damages.
However, Dr Preddy's opinion is that his injuries are sufficient
serious to qualify him for general damages under the narrative test.
Dr Preddy filed an RAF4 report in this regard.
[13]
In terms of the 2008 Regulations to the Road Accident Fund Act, 56 of
1996 ("the Act") when the defendant is not
satisfied with
an assessment of serious injury assessment in terms of section 17(1A)
of the Act, it can either reject the serious
injury assessment and
the matter is then referred to the Health Professions Council of
South Africa, or it appoint its own medical
experts to conduct an
assessment. Counsel for the plaintiff, Mr Kilian submitted that the
defendant exercised neither of these
options hence it can be
accepted, based on Dr Preddy's report, that the plaintiff qualifies
under the narrative test for general
damages.
[14]
At the time of the collision the plaintiff was 49 years old and was
employed as a Building and Facilities Supervisor. He was
absent from
work for ten months and returned to his pre-accident employment on 3
September 2018.
[15]
The report of the occupational therapist, Ms. N Doorsammy, indicates
that when the plaintiff returned to work after ten months
he
experienced a number of difficulties including: being unable to climb
stairs and scaffolds and being unable to handle heavy
objects; being
accommodated with light work duties; and being accommodated with
administrative duties, reduced load handling and
reduced number of
sites to supervise. The occupational therapist's conclusion, based on
his physical assessment, is that he is
compromised in meeting the
inherent requirements of his pre-accident job demands as a Building
Supervisor due to his postural tolerance
deficits, and load handling
as a result of the injury to the axial spine and both lower limbs.
[16]
The Industrial Psychologist, Ms C. Williams, confirms in her report
that the plaintiff has been vocationally compromised as
a result of
the collision and should be compensated.
[17]
The plaintiff suffered past loss of earnings. He will suffer future
loss of earnings as he is expected to retire early at the
age of 59
½
.
The orthopaedic surgeon and occupational therapist agree that he will
have to retire between three to five years early. His total
loss of
earnings was calculated in the actuarial report as R 1 186 169.00,
consisting of past loss at R 67 345.00 and future loss
R 1 118
824.00. The contingencies calculated in the actuarial report favour
the defendant and it was submitted by Mr Kilian that
for purposes of
settlement the plaintiff had proposed the sum of R 900 000.00 to the
defendant for total future loss of income,
and for purposes of this
trial it would not deviate from this.
[18] In respect of the claim for
general damages, Mr Kilian relied on the following authorities:
Dicks
v Union and National Insurance
1971
(2E6) QOD 211E- the plaintiff sustained a fracture of the right
femur, tibia and fibula with infection and thrombosis resulting
for
long periods thereafter. The tibia and fibula fractures were treated
by internal fixation and reduction and fixation of the
femur. An
amount of R 7000 was awarded, current value R528 000.00
Mgudlwa
v RAF
2011 (6E3) QOD 1 (ECM) - a 43
year old teacher sustained fractures of the femur and tibia. The
plaintiff was in traction for three
months and left with deformity of
the end of the femur with the left leg 5cms shorter than the right.
Numerous future surgeries
were indicated. An amount of R300 000.00
was awarded in 2011 - current value R496 000.00.
Van
Reyneveld v Santam
1976 (2J2) QOD 6390
- a 16 year old boy sustained multiple injuries, including an injury
to the left hip joint, a comminuted fracture
of the lower half of the
shaft of the left femur, an open fracture of the bottom third of the
tibia and fibula of the right leg
and a fracture of the radius of the
left forearm. Various operations were performed. An amount of R9250
was awarded in 1976 - current
value R433 000.00.
[19]
Counsel relied on the following cases to provide guidance on the
quantum spinal injuries:
Oosthuizen
v RAF
2016 (7C4) QOD 5 (GNP) - a 24
year old male sustained a compression fracture of the L3 verterbral
area resulting in pain the lumbar
spine area with the possibility of
future surgery to the lumbar spine. The plaintiff also sustained soft
issue injuries and a concussion.
An amount of R520 000.00 was awarded
in 2016 - current value R671 000.00.
Shongwe
v RAF
2013 (6C4) QOD 34 (GNP) -a 41
year old plaintiff sustained a back injury consisting of a fracture
of the T8 vertebrae with severe
consequences, pain and discomfort
which contributed to her suffering and also a loss of future
earnings. An amount of R300 000.00
was awarded in 2013 - current
value R 453 000.00.
[20]
On the above authorities, Mr Kilian submitted that an award in the
sum of R 450 000.00 for the plaintiff's general damages
would be
appropriate, however an amount of R 400 000.00 was proposed to the
respondent for settlement purposes and would continue
to be relied
upon.
Order
[21]
In the premises, the draft order marked "X" is hereby made
an order of court.
___________________________________
U. BHOOLA
ACTING JUDGE OF THE
HIGH
COURT
GAUTENG DIVISION, JOHANNESBURG
Date
of hearing: Heard on 5 August 2020 by videoconference in terms of the
Judge President's extended Consolidated Directive of
11 May 2020
extended to 15 August 2020.
Date
of judgment: 1 September 2020 - handed down electronically and
emailed to parties, uploaded onto caselines and made available
to
saflii.org
Appearance:
Counsel
for the plaintiff: J M Kilian
Instructed
by:
Mouton
and Williams
Pretoria
c/o
Gordon Holtmann
Parktown