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[2011] ZAGPPHC 197
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Nkosi NO v Road Accident Fund (46585/2008) [2011] ZAGPPHC 197 (12 October 2011)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT, PRETORIA :
(REPUBLlC
OF SOUTH AFRICA)
Case
no: 46585/2008
DATE:12/10/2011
In
the matter between:
CACANE
GASIA NKOSI N.O ESTATE
LATE
..................................................................
Plaintiff
JOEY
BUTITSHI MTHIMUNYE
and
THE
ROAD ACCIDENT
FUND
...................................................................................
Defendant
JUDGMENT
MATOJANE
J
[1]
This matter concerns only the quantum of the damages which the
plaintiff has suffered as a result of the injuries which he sustained
in a motor vehicle collision which occurred on 10 October 2005.
[2]
The plaintiff, who is now deceased, was a contract worker doing
tiling. At the time of the accident he was a passenger on the
back of
the van when another vehicle came into collision with the van.
[3]
The plaintiff claims damages in the amount of R285 000.00 which
amount is made up as follows:
1.
Future medical expenses
...................................
R105
000, 00
2.
General damages
.............................................
R180 000, 00
[4]
I was advised at the commencement of the trial that I must make a
finding on general damages only. The defendant has tendered
to
provide to the plaintiff an undertaking as envisaged in
section
17(4)(a)
of the
Road Accident Fund Act, No. 56 of 1996
. Past loss of
earnings have been agreed at R9 600.
[5]
What remains for decision is accordingly the plaintiff's general
damages only as the deceased has since passed away.
[6]
There is no dispute as to the injuries, which the plaintiff sustained
in and as a result of the collision. A number of medico
legal reports
have been provided and I was advised at the commencement of the trial
that the parties are agreed that the medico
legal reports of Dr.
Andre van Niekerk, an orthopedic surgeon, Petro Grove, an
occupational therapist and Johan Erasmus, an industrial
psychologist
may be admitted into evidence without the necessity of calling these
witnesses. The parties are in agreement as to
the correctness of both
the facts recorded therein and the opinions set out therein.
[7]
These reports reveal that the plaintiff suffered the following
physical injuries in the collision:
1.
Fractured radial head on the right side;
2.
Fracture of the right distal radius;
3.
A non union of the Ulnar styloid.
[8]
As a result of these injuries the plaintiff continued to suffer until
his death from the following sequelae:
1.
Painful elbow and had a problem lifting heavy objects. He had
problems performing his work as contract worker doing tiles.
2.
Painful right wrist.
[9]
Dr. Andre van Niekerk reports that at the time of assessment, he
presented with a fractured head of Radius on the right side
plus
fractured distal Radius and Ulnar Styloid. He suggests conservative
treatment of his injuries and does not foresee the possibility
of
permanent disability. He recommends pain tablets. He reports that he
should be back at work within a two months period.
[10]
Petro Grove, the occupational therapist, reports that plaintiff was
not able to meet work speed requirements of the industrial
standards
in the competitive open labour market with his right hand. His right
dominant hand was slower. He opinioned that he would
require an
understanding employer should he secure formal employment in the
competitive open labour market as a result of the slow
work speed
with his right upper limb and increased fatigability of his right arm
and wrist, requiring regular breaks.
General
damages
[11]
There are no general rules to follow in determining the amount to be
awarded for general damages. Watermeyer JA, in Sandler
v Wholesale
Coal Supplies Limited
1941 AD 194
at 199 stated as follows:
"The
amount to be awarded as compensation can only be determined by the
broadest general considerations and the figure arrived
at must
necessarily be uncertain, depending upon the Judges view of what is
fair in all the circumstances of the case."
[12]
The injuries which the plaintiff sustained and the sequelae which he
has endured are set out and discussed above. I have given
careful
consideration thereto in endeavoring to assess a reasonable
compensation for general damages.
[13]
I have been referred to by the legal representatives of the parties,
to a number of previous decisions which they argued are
of assistance
in indicating a general trend of the value of awards in matters
comparable to the present. I have given careful consideration
to each
of these decisions, and regrettably, each of these differs on the
facts and considerations raised therein from the present.
[14]
I have considered the well-established principle that I should take
care to see that the award which I make is fair to both
sides so as
to give just compensation to the plaintiff, but not "to pour out
largesse from the horn of plenty at the defendant's
expense".
(Compare Pitt v Economic Insurance Company Limited
1957 (3) SA 284
(N) at 287.)
[15]
On a consideration of all these factors and in particular the
injuries and sequelae sustained by the plaintiff as fully set
out
above I consider that an award of R100 000, 00 would represent a fair
compensation as general damages for shock, pain and suffering,
discomfort, disability, and loss of the enjoyment of the amenities of
life which the plaintiff has suffered. There is no need for
an
undertaking for future medical expenses as the plaintiff has since
died.
[16]
In the result, the following order is made:
1.
The defendant is ordered to pay to the plaintiff R109 600 as
compensation for past loss of earning and general damages.
2.
The defendant is ordered to pay to the plaintiff interest on the
aforestated damages calculated at the legal rate from
a
date fourteen (14) days after the date hereof to the date of payment.
3.
The defendant is ordered to pay the plaintiff's costs of the
suit,
such costs to include the costs of medical reports
l^flATOiANE
JUDGE
OF THE HIGH COURT