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[2023] ZAFSHC 186
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Nkonoane v Road Accident Fund (2905/2021) [2023] ZAFSHC 186 (23 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
2905/2021
In
the matter between:
MOETI
GREGORY NKONOANE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON
:
25 NOVEMBER 2022
JUDGMENT
BY
:
KHOOE,
AJ
DELIVERED
ON
:
23 MAY
2023
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time
for
the hand-down are deemed to be 11:00 on 23 May 2023.
INTRODUCTION
[1]
The plaintiff, a male born on 5 December
1991, was injured as a result of a motor vehicle accident that
occurred on 2 July 2018.
The plaintiff was a pedestrian on Mampoi
Road, Phithaditjhaba, Qwaqwa when an unknown motor vehicle collided
with him. The plaintiff
then proceeded to institute proceedings
against the defendant for the injuries he suffered as a result of the
accident.
[2]
The plaintiff’s claim was for an
amount of R 9 484 459.00, made up as follows:
2.1
Past medical and hospital expenses:
R 100 000.00
2.2
Future medical hospital expenses:
S 17(4)(a) Undertaking
2.3
Estimated Past and future loss of
earnings:
R 8 384 459.00
2.4
General
damages:
R 1 000 000.00
[3]
The defendant accepted liability for 70% of
the plaintiff’s proven or agreed damages.
[4]
The parties agreed that the plaintiff’s
claim for past medical and hospital expenses would stand over for
later adjudication.
[5]
The parties agreed that the plaintiff’s
past and future loss of earning capacity would stand over for later
adjudication.
[6]
I have been called upon to decide the
amount of compensation for general damages.
[7]
The plaintiff handed in the reports of the
following experts; Dr D R Bogatsu (orthopaedic surgeon), Ms S Moagi
(occupational therapist)
as evidence, which the defendant accepted.
[8]
On 2 July 2018, the plaintiff was injured
when he was run over by a motor vehicle. He was admitted to Manapo
hospital in Qwaqwa
and on 6 July was transferred to Pelonomi hospital
where he spent approximately six (6) weeks.
[9]
He underwent an operation, attended
physiotherapy sessions, had bedrest and received mediation and
crutches.
[10]
According to Dr Bogatsu’s report, the
plaintiff suffered a pelvic fracture, a right humerus fracture and
multiple soft tissue
fracture.
[11]
The plaintiff listed the following current
complaints; pain below groin at times, numbness of the right hand and
fingers, inability
to lift heavy objects, difficulty in performing
physical activities, inability to stand and sit for long periods,
reduced walking
distance and stiffness.
[12]
Dr Bogatsu concluded that orthopaedic
injuries sustained in the accident resulted in a healed pelvic
fracture with implants in situ,
a healed humerus fracture and
post-traumatic degenerative changes of the hips and left sacroiliac
joint. His conclusions were supported
by a report from Dr Van Dyk &
Vennote Inc.
[13]
According to Dr Bogatsu, the plaintiff will
require visits to a general practitioner for treatment of ongoing
pains at injury sites,
vigorous physiotherapeutic treatment to
restore muscle strength and to improve endurance of the patient,
assessment and intervention
by an orthopaedic surgeon to remove
implants, sacroiliac joint arthrodesis and bilateral hip arthroscopic
debridement and total
hip replacement at a later stage.
[14]
Ms Moagi the occupational therapist
reported the following having noted the X-ray report from Dr W Piek
the radiologist; the plaintiff
presented with functional muscle
strength and range of movement of both upper limb joints, however,
with reported right arm pain
at extreme ranges. The lower extremity
functional scale, plaintiff scored 40% which indicates that he
perceives mild functional
restriction due to right arm pain. The
plaintiff presented with functional muscle strength and full range of
movement of both lower
limb joints, however, with reported left hip
and pelvic area discomfort with left hip range of movement testing.
On the Baseline
Hydraulic Dynamometer, the plaintiff’s grip
strength for right hand fell below the required norm for a person of
his age
and gender.
[15]
According to Ms Moagi, the plaintiff has
the following complaints; pain below groin at times, numbness of the
right hand and fingers,
right upper limb pain when carrying heavy
items, struggles to lift heavy items, pelvic pain and discomfort when
walking for long
periods, discomfort on the pelvis when sitting for
long periods and struggles to sleep due to pains.
[16]
The following loss of amenities of life
were noted, discomfort in the right shoulder and pelvic area which
require medication for
pain relief; his work activities have been
disrupted, he requires reasonable accommodation and will be deemed
vulnerable in the
working environment; his ability to engage in
activities of daily living tasks have been negatively affected; he
needs to use specialised
equipment and has never been pain free since
the accident.
[17]
Ms Moagi reported that the plaintiff’s
current rate of work, work qualification profile as well as physical
capacity would
not meet the physical requirements for occupations
that require a person to constantly bilaterally or unilaterally use
right dominant
upper limb above shoulder level, those that put
constant strain on the right shoulder, physically exerting force with
right dominant
upper limb as well as those that require optimum
function and strength of the right hand and bilateral hand due to
reported right
shoulder discomfort. She further reported that the
plaintiff could not competently meet the physical requirements for
work sample
that falls within full range of medium, heavy to very
heavy types of work. As a result, the plaintiff’s physical
requirements
for his pre-accident occupation. Due to the reported
pain, impairment will negatively affect his load handling abilities
as well
as efficiency when fulfilling his pre-accident occupational
tasks. He will therefore be deemed more vulnerable.
[18]
According to Ms Moagi, the plaintiff has
been left with significant long-term orthopaedic/musculoskeletal
residual impairment which
continue to affect his physical functional
capacity on a permanent basis. He requires future surgery to address
his residual limitations
and impairment.
[19]
The plaintiff’s counsel argued that
the sequalae of the injuries suffered by the plaintiff were permanent
and according to
the above reports have rendered him an unequal
competitor for work in the open market. Mr Thompson argued that not
only have the
injuries affected the plaintiff’s occupation but
has also affected his ability to function in his private life.
[20]
Mr
Thompson referred to a number of comparable cases, but for his main
argument, he referred me to
Kgopyane
v Road Accident Fund
[1]
. In that case the plaintiff sustained a pelvic fracture, which
caused damage to her bladder, and resulted in permanent incontinence.
She furthermore sustained a fracture of the right superior rami as
well as the left inferior ramus along the link of the bone.
She had a
chest contusion, injury to her right foot as well as soft tissue
injuries.
[21]
While
Counsel admitted that the injuries in
Kgopyane
were much more than in this current case, he submitted that in this
case the plaintiff did not only suffer a pelvic injury but
also
suffered a humerus fracture. Counsel referred me to
Jordan
v Union and South West Africa Insurance Co Ltd
[2]
,
where an award of R 2 200.00 in 1969 (current value R 177 900.00) was
awarded to the plaintiff for a humerus fracture. Based on
the above,
Counsel submitted that a reasonable amount to be awarded to the
plaintiff is R 750 000.00.
[22]
Ms Mkhwanazi for the defendant submitted
that the outcome and diagnosis by Dr Bogatsu were healed pelvic
fracture, healed humerus
and post-traumatic degenerative joint
disease. She argued that the pelvic fracture and the humerus had
healed and that the case
law that the plaintiff had relied on were
for multiple and severe injuries.
[23]
She
also referred to
Kgopyane
and to
Nonkwali
v Road Accident Fund
.
[3]
She however differentiated them from the plaintiff’s case,
submitting that the plaintiff’s injuries were not as severe
as
the injuries in said that while the defendant acknowledged the
post-traumatic degenerative joint disease and sequelae the other
injuries had healed. She submitted that the fair amount to be awarded
was R 500 000.00 and R 350 000.00 after apportionment.
[24]
Counsel for the plaintiff submitted that
the manner in which the defendant approached the award was incorrect.
He submitted that
the argument was not about the injuries that had
healed, but the sequalae of the injuries that had to be taken into
consideration.
The long-term effects that the injuries were going to
have on the plaintiff. He therefore submitted that R 500 000.00 could
never
be fair.
[25]
Mathebula
J said the following in
Dhlamini
v Road Accident Fund
[4]
“
An
assessment of an appropriate award of general damages is a
discretionary exercise of the trial court. The ultimate goal is to
arrive at an award that will compensate the injured party in a fair
and adequate manner. Every court has to bear in mind the injuries
sustained by the plaintiff, considering the nature thereof, severity,
permanence and its general impact. There are no hard and
fast rules
or a particular formula to be followed for the determination of
quantum of damages. It is generally recognised that
the matters used
as previous comparable awards will not always be on all fours with
the matter on hand. The matters cited by both
counsel were merely
used as guide.”
[26]
I have considered both arguments for the
parties and the case law they referred to, for which I am grateful
for. Taking into consideration
that an award for damages need not
paralyse the defendant, I believe a fair amount for general damages
is R 650 000.00 less 30%
in the circumstances.
[27]
In the result, I make the following order:
27.1
The defendant is liable for 70% of
plaintiff’s proven or agreed damages.
27.2
The issue of future medical and hospital
expenses and general damages are separated from other issues in terms
of Rule 33(4), with
the issue of loss of earning / earning capacity
postponed.
27.3
The defendant shall pay the plaintiff an
amount of R 455 000.00 (four hundred and fifty-five thousand rand) in
full and final settlement
of the plaintiff’s claim for general
damages which amount is made up as follows:
General
damages
: R 650 000.00
Less 30% apportionment
:
R 195 000.00
TOTAL
:
R 455 000.00
27.4
The defendant to pay the plaintiff’s
taxed or agreed party and party costs on High Court scale, until date
of this court order,
including but not limited to the costs set out
hereunder:
27.4.1
The preparation, reservation and / or
attendance fees of Counsel to attend the matter on 22, 23 and 25
November 2022;
27.4.2
The reasonable preparation/ qualifying and
reservation fees and expenses (if any) of the following experts:
27.4.2.1
Dr Bogatsu (Orthopaedic surgeon);
27.4.2.2
Ms Moagi Occupational Therapists.
27.5
The payment provisions in respect of the
aforegoing are ordered as follows:
27.5.1
All payments in terms of this order are to
be paid directly into the account of the plaintiff’s attorneys
of record by means
of electronic transfer, the details of which are
the following:
Gcasamba Attorneys
Inc
Bank
-
ABSA
Branch
Code
-
6[…]
Account
No.
-
4[….]
27.5.2
Payment of the taxed or agreed costs shall
be made within 180 (hundred and eighty) days of taxation, and shall
likewise be effected
into the account of the plaintiff’s
attorney.
27.6
Interest shall accrue at the statutory rate
per annum, compounded, in respect of:
27.6.1
The taxed or agreed costs, calculated from
14 (fourteen) days from date of taxation, alternatively date of
settlement of such costs.
27.6.2
The plaintiff’s claim for past
hospital and medical expenses is hereby separated in terms of Rule
33(4) and postponed to the
pre-trial.
_______________
N.J.
KHOOE, AJ
On
behalf of the Plaintiff:
Adv.
D.R Thompson
Instructed
by:
Gcasamba
Inc Attorneys
Bloemfontein
On
behalf of the Defendant:
Ms.
K Mkwanazi
Instructed
by:
State
Attorney
Bloemfontein
[1]
(43235/2014)
[2016] ZAGPPHC 872.
[2]
[1969]
LNQD 12 (C).
[3]
(771/2004)
[2009] ZAECMHC 5 (21 May 2009).
[4]
(3564/2018)
[2022] ZAFSHC 72
(23 March 2022) para 9.