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[2010] ZAGPPHC 601
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Van Heerden v Road Accident Fund (15429/2008) [2010] ZAGPPHC 601 (7 May 2010)
IN
THE NORTH GAl'TENG HIGH COURT
(
REPUBLIC
OF SOUTH AFRICA)
Case No: 15429/08
Date: 7 May 2010
In the matter
between:
ANNIKA VAN
HEERDEN
..................................................................................................................
Plaintiff
vs
ROAD ACCIDENT
FUND
.............................................................................................................
Respondent
JUDGMENT
SAPIRE, A J:
The Plaintiff,
formerly a hairdresser, or hair stylist, as some prefer to be called,
is suing the Defendant claiming damages for
injuries sustained by her
in a motor car accident. The matter is defended both on the merits
and on the question of damages. I
deal with these aspects in that
order.
Merits:
Plaintiff testified
that the accident in which she was injured occurred on the 19
th
of March 2004 at about 8h30. The Plaintiff was travelling from
Johannesburg to Nelspruit on the N4 in a motor vehicle of which
she
was the driver. The prevailing weather conditions were clear and dry
The surface of the road was macadamised. The collision
occurred west
of Machadadorp At the scene of the occurrence the road consisted of
two lanes, one for traffic travelling in each
direction. There was a
yellow line sufficiently far from the edge of the road for a motor
vehicle to travel therein Veldt abutted
the road on either side.
The Plaintiff
recounted that the taxi had been driving behind her in close
proximity to her for about thirty minutes. The Plaintiff
recalls that
the taxi followed less than a car’s length behind her. Although
the Plaintiff was not questioned at any length
on this subject the
estimate of a half an hour as the time that she was followed by the
taxi seems to me an exaggeration But little
turns on this and is not
a reason to reject her evidence as a whole.
The taxi was unable
to pass as there was oncoming traffic. As she felt pressure from the
vehicle behind her she moved over the yellow
line to the side of the
road but still on the tarred surface, in order to let the taxi pass.
The next thing she knew was that the
taxi collided with her vehicle,
causing her to move first to her left and then she swung right taking
her vehicle into the lane
of oncoming traffic. She then corrected
again moving to her left but lost control of the vehicle which rolled
and landed on its
roof alongside the road She recalls that the taxi
after hitting her vehicle continued on its way without stopping.
When her vehicle
came to rest she unbuckled her seat belt and she fell on her head At
that time she also saw her hand which had
been crushed between the
car and the earth, and remembers seeing her hand dangling on some
skin.
A passerby assisted
her and attempted to stop the bleeding and then took her to the Sappi
Plant to be stabilised in its clinic Thereafter
she was taken to the
hospital in Nelspruit where she was put on a drip and her arm was
operated on at about 18h00. Only the bones
in the forearm were
adjusted and her arm was placed in a cast.
From the Nelspruit
Hospital where she remained until Sunday she was taken to the Kloof
Hospital where she underwent further procedures
These procedures
included muscle being taken from her back and skin from her left leg
to reconstruct her hand After discharge from
the hospital she went to
a doctor for treatment on a weekly basis She also received attention
from a physiotherapist twice a week
and an occupational therapist
once a week.
Plaintiff suffered
pain and could not use her right hand for a year and a half She was
not able to brush her teeth as before and
could only use press studs
as she could not handle a button. She experienced difficulty in tying
her shoe laces. She has no feeling
in her arm and cannot make a fist
or hold objects properly, Her right upper limb is extensively scarred
and does cause embarrassment.
She began her career
as a hairdresser in 1991 as an apprentice The work was a source of
pride and satisfaction to her. She was eventually
employed when
qualified by Regis. At the time of the accident she was earning
approximately R11 500,00 per month This was not disputed
At the time
of the accident Plaintiff worked at the Fourways Mall branch of Regis
where she was a senior stylist Her work consisted
of cutting and
styling, serving products and providing training in the art at other
branches, once or twice a week
After the collision
Plaintiff recuperated at home for almost two years She received part
of her salary' during this period but was
never able to resume her
duties after the collision and did not return to work. The reason
that she could not continue as a hairdresser
was and is that she
cannot hold scissors nor can she manage the hand motions that the
work requires. She made particular reference
to the fact that she
could not wash the customer's hair.
Because she could no
longer function as a hairdresser she decided to study with the view
to becoming a nail technician She chose
a channel which kept her in
the beauty industry. Although she is able to do the work of a nail
technician she tires quickly, works
slowly, and is not able to carry
out the work as a fully able body person would. She had suffered a
loss of earnings since becoming
a nail technician.
Plaintiff also
described how she worked as a receptionist for some time Her
motivation for so doing was the higher salary. This
occupation did
not continue long as she could not fulfil her duties Plaintiff
described how she worked after resigning as a receptionist
and
detailed her monthly income at this time. She continues to work as a
nail technician basing herself at her home but also goes
to client's
houses. She has a few steady clients and although her business
provided a poor income at present she hoped that the
business would
grow
Plaintiff was cross
examined at some length, on the issues which the defendant raised in
its plea.
Defendant in the
first place suggested that the accident was caused by the Plaintiff
having lost control of her vehicle without
any other vehicle being
involved at all In effect this would mean that the Plaintiff was
fabricating a version to bring herself
within the provisions of
Section 17(1) (b) of the Act In support of this theory Plaintiff was
questioned as to why the description
of the occurrence as recorded by
the official who compiled the accident report makes no mention of
another vehicle being involved.
In the absence of evidence from the
traffic officer as to how he came to compile his report her
insistence that such an impact
took place must be accepted. It does
not seem that she should be called upon to explain the version
recorded unless the official
was called to testify that she had
subscribed to the version recorded by him. Plaintiff has been
consistent in her account of the
accident to which she testified. Her
evidence was given in an unexceptionable manner and stands
uncontradicted.
She was also
questioned about what steps she had taken to identify the
owner/driver of the taxi. It is difficult to see what she
could have
done apart from having deposed to affidavits and having reported the
occurrence to the Police. No steps were suggested
which she could
have taken.
A succeeding witness
was the Plaintiffs attorney of record who explained that in order to
identify the owner or driver of the taxi
he had been in touch with an
officer at the Waterval Boven Police Station prior to the lodgement
of the Plaintiff s claim. The
enquiries made were unfruitful in this
regard
This issue is not a
maintainable objection to the acceptance of Plaintiff s claim. 1 find
that as far as the merits are concerned
the Plaintiff established her
claim
Amount of Damages
After the Plaintiff
concluded her evidence a Mrs Dolinschek testified as an expert
occupational therapist. She testified at some
length as to the
incapacitating effect of the injury received by the Plaintiff and it
is clear from her evidence that hairdressing
is not possible for the
Plaintiff since the injury Her evidence was also directed to what
employment prospects are open to the
Plaintiff. Her injury would
prevent her from working as a typist or secretary and her injury made
her unattractive to prospective
employers in the open labour market.
She considered that the Plaintiffs current occupation as a nail
technician was well suited
to her notwithstanding that she works at a
slower pace than other technicians. No doubt the disfigurement to her
right hand would
also limit the number of clients who would choose
her as their nail technician. Her testimony was largely unchallenged
and w'as
taken into account by the actuary-' who calculated the
Plaintiffs damages.
The following
witness was a Dr A Strydom, an industrial psychologist whose evidence
and conclusions need not be minutely examined.
The effect of the
evidence of these experts was that the injur)' sustained by the
Plaintiff was serious and its effects permanent
Plaintiff s claim
that she was disabled from pursuing her chosen career in the field of
hair styling was justified. It is also
clear that she is still
capable of earning a salary in some alternative occupation. Her
choice to become a nail technician and
to service her own clients is
not unreasonable Possibly there are more lucrative avenues open to
the plaintiff but this on the
evidence remains pure conjecture.
Plaintiff s counsel
submitted that Plaintiffs damages comprised.
Past hospital and
medical expenses
These had been paid
by workman's compensation
commissioner
................................
NIL
Past loss of income
Agreed
.................................................................................................................
R472,
753
Future loss of
income
On basis of
actuary's calculation (1
st
scenario)
.......................................................
1,039,976
General
Damages
................................................................................................................
250,000
for which he
contended
The actuary's
evidence as to method of calculation was accepted and he was not
called to substantiate his calculations. The factual
basis for such
calculations is in the nature of the exercise speculative and
imprecise The actuary's calculations envisaged three
possible
scenarios and with these in mind has come to what he considers a
reasonable figure as an estimate of an amount for future
loss of
earning. Plaintiff s claim is based on the gloomier of the two most
likely scenarios examined in argument.
I conclude that it
would be fair and reasonable to award one million rand as
compensation for loss of earning capacity, being an
amount something
between the two most likely scenarios.
The amount claimed
for general damages is reasonable and requires no adjustment
There will be
judgment for plaintiff as follows
a) Payment of the
amount of R 1 722 573.
b) Defendant is to
furnish an undertaking in terms of section 17(4) of the Act in
respect of future medical expenses;
c) Interest @ 10.5 %
per annum on the award commencing 15 days after date hereof until
date of payment
d) Costs of the
suit, to include the fees of the expert witnesses who testified as
well as the actuaries who did not testify
SAPIRE. A J
Attorneys
for the Plaintiff: HALSE HAVEMANN & LLOYD
Tel: 011-326 3248
Ref: LSTUDTI
C/O Van Stade van
der Ende Attorneys
319 Alpine Road
c/o Alpine & Sout
Village Lane
LYNNWOOD
PRETORIA
Tel: 012-3480400
Ref: D van
Staden/cs/RAL 1/0001
Counsel for the
Plaintiff: Adv Justin Erasmus
Attorneys for the
Defendant: MAPONYA INCORPORATED
950 Pretorius
Street.
ARCADIA,
PRETORLA
Tel: 012-342 0523
Ref: Mr R
moodliar/lc/RM 3814
Counsel for the
Defendant: Adv R Raubenheimer