About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 187
|
|
Mlangeni v Road Accident Fund (24645/2009) [2010] ZAGPPHC 187 (28 October 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE NORTH GAUTENG HIGH COURT
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No: 24645/2009
DATE:
28/10/2010
in
the matter between:
CS
MLANGENI
vs
ROAD
ACCIDENT FUND
JUDGEMENT
SAPIRE,
A J:
The
Plaintiff, a thirty year old man, was injured in a road accident on
28th April 2007. The Defendant has accepted 100 percent
liability
for to compensate him for the damages sustained by him through bodily
injury. In issue only, are the amounts to be awarded
for general
damage, and in respect of his alleged loss of earning capacity or of
earning capacity or estimated loss of earnings
in the future. The
defendant agrees to furnish the plaintiff with a statutory
undertaking in terms of Section 17(4) (a) of the
Road Accident Fund
to provide for future hospital and is injuries sustained in the
accident. At the commencement of the trial Plaintiff
handed up a
bundle (paginated indexed and bound), of expert reports which he
informed me, the parties had so agreed, was to be
regarded as
uncontested evidence upon which the parties were agreed I was to make
an award comprising compensation for loss of
earning capacity, and
general damages.. Both the opinions of the experts and the facts on
which they were based were common cause.
The
matter was complicated when at the commencement of the hearing
plaintiffs counsel called plaintiff to testify to new matter
upon
which the Plaintiff was later, to make an increased claim. Plaintiff
testified that although he was presently in employment
his contract
the period of which was for one year was not to be renewed. Plaintiff
inferred that the reason was that because of
his injuries he could
not perform his tasks to the satisfaction of his employer. On the
basis of this Plaintiffs counsel advanced
the argument that Plaintiff
was permanently disabled from doing the only work he knew and that
his loss of earning capacity should
be calculated on this basis. Such
a calculation would bring the amount claimed far excess of that
specified in the amended particulars
of claim. Plaintiff therefore
proposed an amendment to the pleadings to increase the amount of
damages claimed. Defendant strenuously
opposed the granting of an
amendment and indicated that, because the basis of the amendment ran
contrary to what had until then
been an agreed factual basis on which
damages were to be assed and calculated, if the amendment were
granted, it would necessitate
a postponement. The plaintiffs counsel
then indicated that the plaintiffs instructions to him were that the
trial was to be concluded
that day and if the amendment would result
in a postponement, he did not wish to proceed with the proposed
amendment. This being
so, plaintiffs counsel abandoned the
application for amendment and rightly conceded that the court should
make its award on the
basis of the pleadings and the claims as they
stood.
Of
crucial importance in examining Plaintiffs claim for loss of earning
capacity or loss of future earnings as it is sometimes expressed,
is
the report of Dr P Engelbrecht an orthopaedic surgeon. His report is
dated 13th August 2010. His examination of the Plaintiff
would have
been shortly before this date. His opinion is therefore, up to date
to all intents and purposes. On the issue to be
determined in these
proceedings the doctor has this to say after a careful and thorough
examination of the plaintiff "Work
Capacity
(a)
Pas:
The
period of sick leave granted to this patient was necessary.
(b)
Present and Future
The
patient is employed as a heavy machine operator. With further medical
treatment I do not foresee early retirement nor a permanent
loss of
work capacity due to the accident and the sequelae thereof."
No
reason was given why the further medical treatment envisaged by the
doctor, had not been undertaken hitherto. As plaintiff is
to receive
a certificate to cover hospitalization and medical expenses there
seem top be no reason for not undergoing the treatment
forthwith.
There is nothing to controvert the opinion expressed by the doctor,
which I am to treat as accepted both by plaintiff
and defendant. The
opinions of other experts on the subject of the plaintiffs loss of
earning capacity cannot detract from the
unequivocal prognosis
expressed by the orthopaedic surgeon.
That
being so, there is no basis for an award in respect of future loss of
earnings or loss of earning capacity.
In
respect of general damage, the amount, R120, 000 I award is in
accordance with awards made in similar circumstances.
I
grant judgment to the plaintiff in terms of a draft order submitted
by the parties as follows.
1.
Judgement in plaintiffs favour for R 120 000,00.
2.
The defendant will furnish the plaintiff with a statutory undertaking
in terms of section 17(4) (a) of the Road Accident Fund
Act, 1996
(Act 56 of 1996) to compensate the claimant for loss of future
accommodation in a hospital or nursing home or
treatment
of or rendering of a service or supplying of goods to the claimant
after the costs have been incurred and on proof thereof,
arising out
of the injuries sustained by him in a motor vehicle collision on
28/4/07.
3.
The total amount in 1 above is payable on or before 2/11/10 into the
bank account of P A S ATTORNEYS with banking details as
follow
FNB,
ERMELO
ACCOUNT:
CODE:
REF:
Mr Stoffberg
4.
The defendant will not be liable for any interest on the instalment
payment if payment is made as stipulated in 2 above. If no
payment is
received on or before 28/11/10 interest shall be calculated at 15.5
percent from date of court order up until date of
full and final
payment.
5.
The defendant will pay the plaintiffs taxed or agreed party and party
cost on the applicable high court scale subject to the
following
conditions:
(a)
The plaintiff shall in the event that the cost are not agreed serve a
notice of taxation on the defendant's attorneys of record;
and
(b)
The plaintiff shall allow the defendant 7 court days to make payment
of the taxed or agreed cost;
The
cost shall include the cost to the date of this order, which cost
shall further include the necessary travelling costs and expenses,
the reasonable cost on consulting with plaintiff to consider this
offer, the cost incurred to accept this offer, and make the offer
an
order of court. The cost shall also further include:
5.1
The cost of all medical legal reports of the experts and actuarial
reports which were filed.
5.2
Travelling cost and expenses for plaintiff to attend all the medical
legal specialist appointments.
5.3
Travelling cost and expenses for plaintiff to attend court as
necessary witness on 6/10/10 and 18/10/10.
5.4
The cost shall also include cost of counsel Mr D J Marx which
includes his day fee for 6/10/10 and 18/10/10.
5.5
The cost shall also include the interpreter's fee for 18/10/10.
SAPIRE,
A J
NORTH
GAUTENG HIGH COURT
ATTORNEYS
FOR THE PLAINTIFF:
G
F BOTHA & VAN DYK INC
c/o
Couzyn, Hertzog and Horak
321
Middel Street
PRETORIA
Ref:
Mr Grobler/al/BS17
COUNSEL
FOR THE PLAINTIFF: ADV MARX
ATTORNEYS
FOR THE DEFENDANT:
MAPONYA
INCORPORATED
950
Pretorius Street
ARCADIA
DOCEX 184
PRETORIA
Tel:
012-342 0523
Fax:
012-342 0439
Ref:
H Salani/Ms N Kruger/gm/HS1663
COUNSEL
FOR DEFENDANT: ADV MASHABA