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[2010] ZAGPPHC 231
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Van Dyk v Road Accident Fund (58643/08) [2010] ZAGPPHC 231 (9 December 2010)
NOT
REPORTABLE
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
NORTH
GAUTENG
HIGH
COURT
PRETORIA
CASE
NUMBER:
58643/08
DATE:
9/12/2010
In
the matter between
CHARMAIN
VAN
DYK
AND
ROAD
ACCIDENT
FUND
.................................................................
DEFENDANT
JUDGMENT
TLHAPI
J
[1]
The plaintiff instituted action against the defendant for
injuries sustained
m
a
collision between a motor cycle of which she was the driver, bearing
registration number
MYN
338
GP and the motor vehicle driven by the defendant. bearing
registration number
WDX
S67
GP
The collision occurred on the 7 January 2008 at the intersection of
Pretoria and Dykor streets in Silverton. Plaintiff claimed
damages in
the amount of R 3 121 659.30
The
parties
agreed on the quantification of issues relating to the plaintiff's
past private hospital and medical expenses in the sum
of R39 535.91
and past medical expenses in the sum of R21 935.00.
The
defendant offered an undertaking in terms of section 17(4) (a) of the
Road Accident Fund 56 of 1996 Furthermore the contents
of the
agreements contained in the joint expert minutes were to stand as
evidence and there was no need for the actuary to be called
but that
his calculations were to be regarded as accurate The issues that
remained to be determined related to that of liability,
loss of
earnings and general damages.
Initially
there was an application for a postponement by the defendant in order
to secure the attendance of its witness. Mr Neethling.
This
application was denied. The issues in this regard will be dealt with
when the evidence of Mr Neethling is considered.
[2]
The plaintiff alleged that the accident was caused solely by the
negligence of The driver of the insured vehicle who was
negligent in
one or more of the following respects
'4.1
he failed to keep a proper lookout;
4.2
He
failed to apply the brakes of the vehicle concerned timeously
alternatively sufficiently, further alternatively at all:
4.3
He
drove without paying regard to, alternatively any proper regard to
the rights of other road users:
4.4
He
drove too fast in the prevailing circumstances; and
4.5
He
executed a right hand turning in front of oncoming traffic when it
was unsafe to do so:
[3]
As a result plaintiff sustained the following injuries:
'6.1.1
Abdominal
injury:
6.1.2
Abrasions
on the left knee:
6.1.3
Fractured
left femur:
6.1.4
Pelvic
fracture:
6.1.5
Head
and brain injury;
[4]
The defendant denied that the collision was caused solely by his
negligence but that it was caused solely by the negligence
of the
plaintiff in that:
"4.2.1
she failed to keep a proper lookout;
4.2.2
she
failed to apply her brakes timeously or at all:
4.2.3
she
failed to exercise proper or adequate control over her motor cycle
4.2.4
she
failed to avoid the collision when by the exercise of reasonable care
and skill, she could and should have done so:
4.2.5
she
drove at an excessive speed under the circumstances;
4.2.6
she
failed to obey the prevailing road traffic signs, rules and markings.
4.2.7
she
failed to take any alternatively, sufficient cognizance of the
presence on the road surface, the actions and the visibly intended
alternatively, probable actions of the insured driver:
4.2.8
she
failed to note the presence of the insured on the surface of the road
alternatively, to timeoulsy note its presence:
Further
Alternatively
4.3
In the event of it being held that the insured vehicle was
negligent Defendant avers that the plaintiff was also negligent
and
that his negligence contributed to the collision
[5]
The plaintiff testified that she was in the company of her cousin
and they were travelling to work on her 120 cc motorcycle
at about
7.45 on the morning of the collision She did not possess a licence
for the motorcycle but had used it to work for quite
some time before
the collision She was travelling in the fas; lane along Pretoria
Street She could not remember the speed at which
she was travelling.
As she approached the intersection she noticed that the robot was
green and it only turned amber when she was
in the middle of the
intersection She testified that she couid not recall how the accident
occurred and whether or not she swerved
or applied her breaks. When
she came to. she was lying on the ground and she heard the sound of
sirens coming. A man held her head
and the emergency personnel gave
her an injection She did not have medical aid and was admitted to the
Pretoria Academic Hospital
(HF) for six days Plaintiff returned to
work six months after the collision.
[6]
Plaintiff testified that she sustained the following injuries:
1.
A
fracture to her left femur: after three days she was operated upon
and screws were implanted. She later developed an abscess in
the
upper thigh and calve ( and not on the site of the surgery): She had
to be drained under general anaesthetic:
2.
She
had an open book fracture of her pelvis and no surgery was
recommended She was immobilized for about five to six months at
her
parental home and spent about 80% of that time in bed .
3.
She
sustained a mild abdominal injury and her bladder was also Injured.
4.
Her
left knee was injured.
Plaintiff
testified that she did not know what type of injuries she sustained
to her head because she wore a helmet on the day of
the collision.
She also developed blood clots and had to receive blood thinning
medication (wafrin). which treatment was continued
for a period of
five months after her return to work.
She
had to take pain tablets because she suffered lower back pain and
occasionally pain in her leg. She had developed a sleeping
disorder
for which sleeping tablets were prescribed She was badly scarred on
her left thigh as a result of the surgery.
Although
she had gone up to standard 6 she was employed as a manager at the
Willow Way Spar and she retained that position after
the collision
She had aspired to be elevated into the position of a PA but realized
that it would not materialize due to the collision.
Her work load and
responsibilities at the work place had increased due to the fact her
employer had acquired other businesses and
she had to endure long
work hours. As a result of the collision it now took her longer to
perform and to complete her tasks because
her concentration and
energy levels had deteriorated: she suffered constant pain in her
lower back and leg and could not properly
cope with the physical
demands of her job she was forgetful and sometimes had to be assisted
at work.
According
to Mr Voschenk. and prior to the accident, plaintiff was a good
worker, and was highly motivated. She would have been
promoted to the
position of assistant store manager by January 2009. Furthermore she
had the potential of progressing in the work
place to a position of
either a store manager (earning a salary of R7000.00 per month)
alternatively to the position as his professional
assistant (earning
a salary of R10000.00 per month). With the experience gained she
could have worked till her retirement alternatively
she had potential
of securing better employment. He testified that since the accident,
her performance had deteriorated, she was
slower in all tasks, made
errors, was unable to concentrate for long, her lack of mobility and
constant pain caused her much frustration
and she had experienced
outbursts of anger: lacked motivation and absented herself more
frequently from work. He testified further
that her future employment
with him depended on her recovery and personal approach. Ms van Zyl.
the Industrial Psychologist testified
that it was unlikely that
plaintiff would find employment in the competitive market, and that
she a poor prognosis for finding
better employment.
[8]
Mr Meiring witnessed the collision There were two lanes going
east and two lanes going west in the opposite direction. He
followed
behind the plaintiff in a direction west to east along Pretoria Road
He travelled at a distance of about 2 km, at a speed
of 60km per hour
and maintained a following distance of about 50 meters behind her. As
the plaintiff approached the intersection
of Dykor and Pretoria Roads
he saw the robot go green and when she entered the intersection and
was between the pedestrian crossings
situated on either side of the
intersection the robot turned amber He also saw the vehicle of the
insured driver ( Nissan Tnda')
which had come from the east and was
already in the intersection awaiting an opportunity to turn right
into Dykor Road He
saw
the vehicle drive across the intersection in front of the motor cycle
into DyKor Road According to him there was no time to
avoid the
collision, the motor cycle collided with the vehicle on the left
passenger back door Plaintiff and companion were flung
over the roof
of the vehicle. Mr Meiring pulled to the side of the road Mr Meiring
did not converse with anyone but heard the lady
who was a passenger
in the vehicle say my husband did not see them Although there was a
tree to the right next to the intersection
it did not pose an
obstruction and the collision could have been avoided.
[9]
It was alleged on behalf of the defendant that Mr Neethling had
undergone an operation and was in hospital at the commencement
of the
trial hence the application for a postponement. The application
having failed, the evidence of several witneses was called
and Mr
Neethling was called after close of the plamtifffs case It was only
during his cross examination that it became apparent
that his wife
(the lady referred to in Mr Meiring s evidence as the one who said
'my husband did not see them ) had been subpoenaed
by the plaintiff,
that she was present at court on the first day of the trial and that
she was informed that they would no longer
call her as a witness and
released Mr Neethling testified that he had not been subpoenaed by
the defendant, that he toe was present
and had just accompanied his
wife to court. He did not recal
1
if
he was ever consulted before by the defendant except that he received
a call on the evening of the day preceding his testimony
and was only
then consulted.
[10]
Mr Neetheling was the driver of the insured vehicle. He testified
that he was alone in his vehicle travelling east to west
He kept to
the right lane because he intended turning right at the intersection
into Dykor road but because the robot was green
he had to wait for
the vehicles travelling west to east in the other lane to pass by.
When the robot turned amber the vehicles
in the other lane (west-east
| began to stop He observed that in the left lane was a taxi and two
vehicles behind it. He saw the
motorcycle driven by the plaintiff for
the first time when it came out of the left side of the taxi.
It
was too late to avoid the collision The motorcycle collided with his
vehicle on the left front passenger door
[10]
A neurosurgeon. Dr Edelmg testified on behalf of the plaintiff with
regard to plaintiff's brain injury. He was assisted in
his diagnosis
by the records pertaining to the treatment of the plaintiff at the
Academic Hospital, Wilmed Park Hospital the report
of Drs Burger and
Matthews and he also held interviews with the plaintiff's mother and
had a consultation with the plaintiff and
his prognosis and
recommendations are documented in his report annexed to the record
Although the hospital and subsequent clinical
records did not report
any head injury, the fact that the casualty records reflected an
impaired level of consciousness, this coupled
with the plaintiff's
report of amnesia for the impact, meant that plaintiff had suffered a
mild primary brain injury during the
collision and that the brain
injury had become moderate before surgery The brain injury progressed
to being more severe as a result
of the post-operative complications
and his final prognosis was that the plaintiff suffered of a Post-
Traumatic Organic Brain
Syndrome. Dr Edelmg testified that the
neurological sequelae of her brain injury had stabilized and become
permanent, that this
would hamper the treatment of her depression and
recommended further treatment and therapy by all the experts who
attended to her
The clinical psychologist Dr Cathy Angus also
testified to the presence of a moderate brain injury.
[11
] The liability of the plaintiff and the insured driver is
determined from the
evidence
of the plaintiff. Mr Meiring and Mr Neethling and it revolves around
what happened as they approached the intersection:
furthermore what
happened in the intersection prior to the collision and at the time
of the collission.
Plaintiff
testified that as she approached the intersection she noticed that
the robot was green whereas Mr Meiring testified that
he noticed the
robot go green as she approached the robot. Although the plaintiff
did not testify in her evidence in chief to having
seen the Tiida.
she testified in cross examination that she had been travelling along
the left lane and had switched to the right
lane as she approached
the intersection. She saw the Tiida and noticed that it had
indicated, intending to turn right she however
did not recall if she
continued to travel at the same speed at which she was travelling. Mr
Meiring testified in cross examination
that the motorcycle was
between the two pedestrian lines before the intersection and that he
did not notice at which point the
Tiida started moving into the
intersection but he confirmed that the Tiida had already turned into
the intersection when it collided
with the motorcycle, that is. it
was crossing the intersection on the right lane crossing over into
the left lane.
Now,
the entire version of Mr Neethling s testimony was not put to the
plaintiff or to Mr Meiring It was submitted for the plaintiff
that no
application was made to have the said witnesses recalled in order to
put the version of Mr Neethling to them and that a
failure to do so
would prevent the defendant from disputing the truth of the witnesses
evidence It was submitted by the defendant
that the plaintiff had
deliberately concealed the presence of Mr Neethling on the first day
of the trial and that the court had
to consider whether or not this
action should adversely affect plaintiffs case It was correctly
submitted on behalf of the plaintiff
that an application emanating
from the defendant to recall the witnesses could have addressed the
situation, however that the defendant
would first have to cross the
hurdle whether or not Mr Neethling was in hospital when the
application for a postponement was made
I am of the view that in the
absence of such an application it would be improper for me to make
any finding of improper conduct
on the part of anyone because it was
only by way of the application that the court would have been
appraised of all the facts.
However, having considered Mr Neethling s
explanation about his encounter with the defendant, I can only
conclude that there was
no preparation for the case by the defendant
and the plaintiff cannot be blamed in this regard
[12]
In my view, the most important issues that could have been cleared
by such cross examination of the plaintiff and Mr Meiring
related to
Mr Neethlings evidence on the following issues
1.
That
the plaintiff's motorcycle was not in the right lane, but that it had
suddenly emerged from the left of the stationary taxi
which was also
in the left lane: that the motorcycle entered the intersection from
the wrong side this situation was depicted according
to the sketch by
Mr Neethling on page 8 of bundle B showing a taxi in the left lane
and of the approach of the motorcycle on its
left.
2.
Mr
Neethling testified in cross-examination that the motorcycle entered
the intersection in the red situation : that the robot was
definitely
red when he turned right into the intersection and moved on:
3.
That he did not see any vehicles approaching from the west except for
the stationary taxi and the two vehicles behind it.
[12]
A reasonable driver in the position of the plaintiff and the
insured driver is expected to observe and to put into operation
certain established principles with regard to his or her approach to
an intersection. Although the plaintiff could not recall the
speed at
which she was travelling. Mr Meiring testified that he maintained a
speed of 60km per hour behind her. for about 2km and
at a following
distance of 50 metres They both saw the insured driver s vehicle
(Tiida) as they approached the intersection and
in particular the
plaintiff saw that the insured driver had indicated to turn left. The
robot lit amber when the motorcycle entered
the intersection. In my
view, and having regard to the evidence of the speed at which Mr
Meiring was travelling (60km), on a balance
of probabilities,
plaintiff could not reasonably have avoided the collision at that
point. In Bata Shoe Co Ltd.(South Africa) v
Moss 1977(4) 16 (WLD) at
22 A-B reference was made to RvMiller 1
957 (3) SA 44
(T):
"
The motorist must make sure that he can execute a right-hand turn
without endangering either oncoming or following traffic.
Generally
speaking he can only do this by properly satisfying himself that such
traffic has observed and is responding to his
signal
or that it is sufficiently far away or slow moving not to be
endangered
or unless some special circumstances exist."
(And).......
a right hand turn:
"
is
a
manoeuvre inherently dangerous in its nature unless executed with
scrupulous care
The
following questions were put to Mr Neethling in cross-examination
-After
f
.he
accident happened there were people who had stopped - it is possible
that someone stopped, yes: -If such person does not know
any person
who is involved would he have any reason to lie about what he saw -
no
In
his evidence in chief Mr Neethling testified that when he turned into
Dykor street, the robot was still green and he had to wait
for the
vehicles in the left lare to pass The robot went amber and the other
vehicles in the left lane began to stop It
is
my
view that in that situation he would have noticed the motorcycle
which according to his version should have been following behind
the
last vehicle Mr Neethhng
's
concession
above gives credence to the testimony of Mr Meiring. because he was
the only one who witnessed the collision and there
was no evidence
contradicting the presence of the motorcycle and his vehicle in the
right lane.
[13]
It was submitted for the defendant that there was no scientific
proof that the plaintiff had suffered brain injury because
such
findings had not been documented in any of the hospital records and
doctors reports and that Dr Edeling had not studied the
X-Ray reports
conducted on the day of the accident at 10h10 Although in cross
examination Dr Edeling conceded that other factors
could
independently cause brain damage, those factors he said did not
excluded the possibility that in this instance brain injury
was
sustained during impact These conclusions he derived from hospital
records reports of treatment
by
other
doctors, information that the plaintiff was flung over the Tiida to
crash land on the tarmac, the observations of the plaintiff's
mother
about her condition at hospital: the crushed helmet: the change in
the standard of work performance: the observations by
the employer of
the and from his own consultation with the plaintiff and other
factors detailed in his reoort. The defendant did
not retain its own
neurosurgeon and other experts such as those called to testify to
refute the diagnosis of the existence of a
brain injury. Dr Angus the
clinical psychologist testified to the presence of a moderate brain
injury Dr Edeling diagnosed a primary
brain injury which had
progressed to a moderate one and that the neurological sequelae of
her brain injuries had become stabilized
and were permanent In the
absence of an alternative expert opinion reliance on any other
opinion would be uninformed and speculative
[14]
The plaintiff testified that her lifestyle changed as a result of
the collision She has to endure constant back pain and
cannot move
around as she used to she had to deal with her disfigurement and
reduced mental capabilities Her employer testified
that continued
employment depended upon her full recovery and approach to work He
confirmed that she had become slow and was forgetful
According to Dr
Edeling plaintiff will not return to her original self she now has to
cope with her mental and physical limitations
On these facts I am
satisfied that the plaintiff has made out a case for an entitlement
to general damages It was submitted for
the plaintiff that the facts
in Adlem v Road Accident Fund Volume V at J2/41 bore a resemblance to
the injuries and the aftermath
suffered by the plaintiff. In my view
the facts in this case are distinguishable because the injuries
suffered there were more
serious than those suffered by the plaintiff
in this matter.
In
the Adlem matter the plaintiff was admitted to hospital in an
unconscious state and detained in the intensive care unit for some
time where she was incubated, ventilated and catheterised and she was
in hospital for five weeks Furthermore she sustained multiple
fractures and the disfigurement and loss of amenities of life were of
a much more serious nature Having regard to the Adelem matter
and to
the comparisons of awards therein. I am of the view that a fair award
for general damages would be an amount of R400 000.00
[15]
The actuary Mr Whittaker based his calculations on the plaintiffs
past and future loss of earnings The figures being those
provided by
her present employer and as also testified to by him The basis for
the calculation was was on what she would have earned
had she been
promoted to assistant store manager from January 2009 at R5200.00 per
month and, on what she would have earned on
January 2010 at R7000 00
per month plus inflation up to her retirement age at 63 Also taken
into account was the fact that she
only stood a 50 per cent chance of
sustaining her present employment due to the injuries suffered and
there being a 50 per cent
chance that she would remain unemployable
This fact was confirmed by the industrial psychologist Ms Van Zyl.
Having made the necessary
contingency deductions the past and future
loss of earnings came to a total of R1 633 885.00.
[15]
In the result the following order is made:
The
Defendant is ordered to pay:
The
Defendant
is
ordered
to
pay:
1.
Past
Hospital
expenses
in
the
amount
of
R39
535.91;
2.
Past
medical expenses in the amount R21 935.00
3.
Past
and Future loss of earning in the amount of R1 633 885.00;
4.
General
Damages in the amount of R400 000.00:
5.
The
qualifying costs and preparation fees of Drs Birrel. Angus. Shevel
Edeling and those of Ms Hattingh, Ms Moreland. Ms Van Zyl
and Mr
Whittaker
6.
Costs
including costs of two counsel
TLHAPI
V
V
(JUDGE
OF THE HIGH COURT)
ATTORNEYS
FOR THE PLAINTIFF : ERASMUS DE KLERK INC ATTORNEYS
FOR
THE DEFENDANT : MF JASSAT DHLAMINI INC