About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2021
>>
[2021] ZAGPJHC 129
|
|
Gumede v Road Accident Fund (36822/2014) [2021] ZAGPJHC 129 (2 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 36822/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE:
2/2/2021
In
the matter between:
GUMEDE
SIBONGISENI
JOSHUA
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
SENYATSI
J:
[1]
This is a claim for damages suffered in a motor vehicle accident
which occurred on
8 December 2010 on the N3 north highway in
Germiston.
[2]
The Plaintiff sustained the following injuries:
(a)
fracture of the right fermer
(b)
fracture and dislocation left radius and ulna
(c)
chest contraction
(d)
laceration of the left calf; and
(e)
laceration of the lip
[3]
The Plaintiff was represented by Ms N Sobekwa and there was no
appearance on behalf
of the defendant. Upon proper consideration the
papers uploaded on Case Lines, it became clear to me that the Road
Accident Fund
was aware of the trial date. Ms Sobekwa also submitted
that there was communication sent with the claim handler at the RAF.
[4]
Ms Sobekwa also submitted that all previous attempts to get the claim
settled were
unsuccessful as the defendant an offer which was not
acceptable to the Plaintiff.
[5]
The only issue that this Court was required to consider was loss of
earnings, earning
capacity and general damages.
[6]
The plaintiff appointed six experts to quantify his claim. These are:
(a)
Dr Schaid- Orthopedic surgeon
(b)
Dr S Bram- Plastic surgeon
(c)
Dr N September- Occupational therapist
(d)
Dr T Tsiu- Industrial psychologist
(e)
Algorithm Consultants and Actuaries
[7]
The defendant appointed the following experts:
(a)
Dr R Geoffrey- Orthopedic surgeon
(b)
Dr E Hlatshwayo- Occupational therapist
(c)
Dr T Gama- Industrial Psychologist
[8]
The merits of the case were settled at 100% and the defendant gave an
undertaking
to issue a certificate for the plaintiff’s future
medical costs. The past medical expenses were also settled.
[9]
The issues that remain to be determined as already stated are past
and future loss
of earnings as well as general damages.
[10]
At the hearing of the matter the Counsel referred the court to Dr
Schaid’s affidavit in
regard to the quantification of general
damages. The court was also referred to case law in this regard.
[11]
In regard to past and future loss of earnings the plaintiff’s
Counsel submitted that the
Plaintiff earned R450 to R500 per week as
a relief taxi driver. She further made submissions that the plaintiff
earned an additional
R450 to R500 per month for long distance travel
between Johannesburg, Pietermaritzburg. In addition Counsel also
submitted that
the plaintiff earned between R3000 and R5000 per month
as a traditional healer. The submission on earnings could not be
supported
by any evidence such as salary slips or bank statements as
proof of the deposits.
[12]
When confronted with the fact that there was no evidence to sustain
proof of loss of earning
Counsel correctly conceded. It must be
mentioned that the loss of earnings was not supported in any way by
verifiable evidence.
As a consequence, no award can be made under
this heading. I do not agree with the experts about the
quantification of the claim.
[13]
The only issue that remains is an award under general damages. On
perusal of the expert’s
reports, it is evident that the
Plaintiff suffered unimagined pain as a result of the accident. This
is confirmed by all experts
from both sides.
[14]
In the case of general damages, it is trite that the court has a wide
discretion to make a determination
of the award. In doing so, it is
guided by the previous awards.
[15]
In
AA
Mutual Insurance Association Ltd v Maqula
[1]
,
it was held that the determination of general damages has never been
any easy task as no mathematical or scientific formula exists
to
compute the monetary value on pain and suffering, loss of amenities
of life and disability.
[16]
It is trite that the award of general damages, must be fair to both
parties. Ms Sobekwa submitted
to this court that in her view and
based on the previous awards of similar injuries the court should
consider awarding R900 000
for general damages.
[17]
I have considered the evidence by experts and the submission made on
behalf of the plaintiff
as well as the pain and suffering endured by
the plaintiff.
ORDER:
[18]
The following award is made:
(a)
The defendant is ordered to pay the
sum of R790 000 for general damages to the plaintiff
within 120
days into the trust account of the plaintiff’s attorneys
details of which must be provided to the defendant within
30 days
from the date of this order to Mr Zulu, the defendants claim handler.
(b)
The defendant is also ordered to pay the taxed costs on a party and
party scale as well
as the costs of all six experts within 90 days
from the date of taxation thereof.
ML
SENYATSI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
Appearances:
Date
of Hearing: 02 February 2021
Date
of Judgment: 02 February 2021
Attorneys
for the Plaintiff: Ndlebe Msutu Inc.
Counsel
for the Plaintiff: Adv N. Sobekwa
Attorneys
for the Defendant: No appearance
Counsel
for the Defendant: No appearance
[1]
1978
(1) SA 805
(A)