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2023
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[2023] ZAGPJHC 1236
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Macwele v Road Accident Fund (2021/53692) [2023] ZAGPJHC 1236 (6 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: 2021/53692
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
06/10/23
In the matter between:
MACWELE,
SIBUSISO NASHI
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
WRIGHT J
1. The plaintiff,
Mr Macwele is 41 years old. He was injured in a road accident in 2017
when he was 35 years old. He has sued
the Fund for damages. The Fund
pleaded and the matter comes before me on trial. The Fund conceded
the merits 100% in favour of
Mr Macwele. His counsel, Mr MH Mokale
and the Fund’s counsel, Ms P Nziyanziya are agreed that the
Fund has already given
the plaintiff a certificate to cover future
hospital and related expenses.
2. A small claim
for past medical expenses was not proceeded with. By agreement,
claims for past and future loss of earnings
are to be postponed.
3. The only issue
before me is that of general damages. The Fund accepts liability. The
question is the amount. The legal
team for Mr Macwele filed a number
of expert reports, including one for an orthopaedic surgeon, one for
a neurosurgeon and one
for an occupational therapist. It was agreed
between counsel that I should proceed on these expert reports as
confirmed by affidavits
by the experts.
4. The following
facts are either common cause or not seriously disputed:
4.1 Before the accident
Mr Macwele was normal. He used to play soccer.
4.2 In the accident Mr
Macwele was reportedly rendered unconscious, although there is a note
by the neurosurgeon that on admission
to hospital the GCS reading was
15/15, indicating consciousness. He was taken to hospital with an
open neck wound, operated on
and remained in intensive care for three
months, suffering acute pain.
4.3 Mr Macwele was
rendered quadriplegic. He can stand but not for long periods.
According to the neurosurgeon, Mr Macwele’s
“
hands
are better than the legs
“ but Mr Macwele can’t walk
or use his hands to take care of himself.
4.4 Mr Macwele has muscle
atrophy and spasticity in his arms and legs and he can’t grasp
with his hands. He is wheelchair
bound.
4.5 Mr Macwele suffered a
mild traumatic head injury.
4.6 Mr Macwele suffers
headaches about twice a week.
4.7 Mr Macwele has
reduced memory.
4.8 Mr Macwele suffers
bladder and bowel incontinence.
4.9 Mr Macwele is in
constant pain and is dependent on others for daily life tasks.
4.10 Mr Macwele is at
risk of developing bedsores and septicemia.
4.11 Mr Macwele is
depressed and suicidal.
4.12 Mr Macwele has scars
on the left side of his head in the parietal area and he has scars as
a result of the use of cone callipers.
5. The injuries and
their consequences are severe and the amount to be awarded for
general damages needs to be fair to compensate
Mr Macwele.
6. In Mertz
v
Road Accident Fund 2022 JDR 3771 (GP), a judgment given by a Full
Court of the High Court in Pretoria on 2 December 2022 an award
of
R3.5m was made in favour of a plaintiff in similar circumstances to
Mr Macwele.
7.
In
Mertz, the plaintiff, a woman was left with a prominent tracheotomy
scar 6cm long and a well healed anterior neck scar about
6cm long. Ms
Mertz suffered acute respiratory failure. She can use her left hand
to operate a computer and to hold a spoon. In
the present case, Mr
Mokale, for Mr Macwele conceded that Mr Macwele was not reported to
have specific respiratory problems. However,
Mr Macwele can’t
grasp with either hand.
8.
In
my view, Mertz being a recent Full Court decision, I should follow
it, allowing for two of the more important differences between
the
two cases, namely that Ms Mertz but not Mr Macwele suffered
respiratory problems and Ms Mertz can use her left hand for limited
tasks while Mr Macwele can’t use either hand.
9.
A
fair award in the present case for general damages is R3.5 million.
10. Counsel handed up a
draft order dealing with various matters. I am to make it an order
having decided only the question of general
damages.
ORDER
X as amended.
GC Wright
Judge of the High
Court
Gauteng Division,
Johannesburg
HEARD
: 5 to 6 October 2023
DELIVERED
: 6 October 2023
APPEARANCES
:
APPLICANT
Adv
Morari Mokale
morarimok@gmail.com
082 563
0262
Instructed
by
Mkwanazi
M.I & Associates Attorneys Inc
sibusiso@mkwanaziandassociates.co.za
083292
6996
RESPONDENTS
Adv
Pumza Nziyanziya
Instructed
by
State
Attorneys
Mr
Tshepo Ngomana
073 102
9764
tshepon1@raf.co.za