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[2023] ZAFSHC 227
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Naile v Road Accident Fund (3416/2019) [2023] ZAFSHC 227 (1 June 2023)
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 HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
number:
3416/2019
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES:
NO
In
the matter between:
MMATHABO MAGGIE
NAILE
Plaintiff
and
THE ROAD
ACCIDENT FUND
Defendant
CORAM
:
M E MAHLANGU, AJ
JUDGMENT
BY:
M E MAHLANGU, AJ
HEARD ON:
23 AND 24 MAY 2023
DELIVERED
ON
:
1
JUNE 2023
INTRODUCTION
[1]
On 2 December 2017 the plaintiff was injured in a motor vehicle
accident. As a result of the injuries,
the plaintiff claimed damages
from the defendant.
[2]
The defendant was represented on 23 May 2023 when the matter was
stood down till 24 May 2023 for
settlement purposes. On 24 May 2023,
the defendant was not represented in court. The defendant’s
representative approached
me in chambers to inform me that there
would be no representative for the defendant. The defendant’s
attorney who was handling
the matter on 23 May 2023 was engaged in a
trial in another court. The matter proceeded on default basis.
[3]
At the start of the trial, the plaintiff’s representative, made
an application to amend
the plaintiff’s particulars of claim.
The amendment was not objected to. The court granted leave to amend.
The amendment
was not prejudicial to the defendant. It related to the
amount of money claimed as per the actuarial calculations. The
plaintiff’s
representative further informed the court that, the
only issues to be adjudicated by the court were the merits of
the matter,
the undertaking by the defendant and the general damages.
Plaintiff’s
evidence, injuries and sequelae
[4]
The plaintiff was 21 year old at the time of the accident. After
completing her Grade 12 certificate
in 2015, she actively sought the
employment without success. In 2017, she enrolled Chemical
Engineering with Faveolus Mareka TVET
College where she successfully
completed her N4 and N5 studies.
[5]
She could not proceed with her studies in 2018 as a result of the
injuries she sustained and the
sequelae thereof. She testified that
she experienced severe pains and limitations in her right hand
[6]
She testified that she was a passenger in the motor vehicle that was
involved in an accident.
Following the accident she was transported
by ambulance to Pelonomi hospital where she was admitted and
discharged on 11 December
2017. She was diagnosed to have sustained a
right distal radius intra-articular fracture and distal ulna
dislocation. The right
forearm was immobilised in a Plaster of Paris
cast. On 18 December 2017, plaintiff presented herself to the
hospital for
a follow up check-up appointment. During 2019, she
underwent an operation on her right arm in which a permanent plate
with screws
was inserted to support her wrist.
[7]
The plaintiff testified that she is a right handed person. She
testified that she is still experiencing
daily pain on her right hand
as a result of the accident. She struggles to do her daily
duties like making he own bed and
dressing herself. Her family is
assisting her with most of her household chores. She still wears a
wrist brace and she cannot use
her hand even to write at school. She
testified that her arm becomes very painful during the cold weather.
During the hot weather
her fingers become swollen. Her right hand
always requires support and she is always carrying it on her stomach.
[8]
The plaintiff was wearing a wrist brace whilst testifying in court
and she could not freely move
her right hand as she could do with her
left hand side as she was demonstrating in court.
Expert witnesses’
evidence
[9]
I do not intend dealing with the detail of the plaintiff’s
expert reports. The following
expert reports were admitted by the
court as evidence:
1.
Dr.
JP Marin -Orthopaedic Surgeon;
2.
Ms
Karla van den Bergh-Occupational Therapist;
3.
Mr
Ben Moodie-Industrial Psychologist.
4.
Johan
Sauer-Actuary
[10] I
have considered the contents of the said reports, in conjunction with
the respective heads of arguments
filed on behalf of the plaintiff.
Merits and an
undertaking
[11] As
mentioned above, the plaintiff testified that she was a passenger in
a motor vehicle that was involved
in an accident. That warrants the
court to grant her 100% claim against the defendant.
[12] I
am also of a view that the defendant should furnish the plaintiff
with an undertaking in terms of section
17(4)(a) of Act 56 of 1996,
in respect of future accommodation of the plaintiff in a hospital or
nursing home or treatment of or
the rendering of a service or
supplying of goods of a medical and non-medical nature to the
plaintiff arising put of the injuries
sustained in the collision
which occurred on 2 December 2017.
General damages
[13]
With regard to general damages, the plaintiff had claimed in her
amended particulars of claim an amount
of R803,000.00.
[14] In
the matter of
AA Mutual Insurance v Maqula 1978(1) SA 805
at
paragraphs 809A-B, the then Appellate Division held that it is
settled law that a trial court has a wide discretion to award
what it
in the particular circumstances considers to be fair and adequate
compensation to the injured party for his bodily injuries
and their
sequelae.
[15] Mr
B Moodie, the plaintiff’s industrial psychologist, stated in
his report that the plaintiff will
likely not be able to complete her
diploma successfully considering the injury and the sequelae thereof.
He further stated in her
report that, the plaintiff is unlikely to
reach her pre-morbid career path in chemical engineering.
[16] Dr
Marin, the plaintiff’s orthopaedic surgeon, stated in his
report that, the long term prognosis of
the plaintiff’s wrist
is compromised. He further mentioned that, the plaintiff has
developed osteoarthritis in her right
wrist and it will progress in
the future.
[17]
The plaintiff was 21 years of age at the time of the accident and was
27 years of age at the time of the
hearing of this matter. Both Mr
Marin and Mr Moodie are of a view that the injury sustained by the
plaintiff would not have detrimental
effect to her life expectancy.
Counsel for the plaintiff have referred me to previous comparable
cases as is the norm. I do not
intend to deal with each case
specifically save to state that they are mainly distinguishable from
the present because the injuries
and consequences in those cases were
either more severe or less so. So too do the personal circumstances
of the plaintiffs in those
cases differ from that of the plaintiff.
However they do serve as a helpful guideline.
[18] I
have given all the above factors due consideration and have concluded
that an award of R803 000.00
would reflect as a fair
compensation for general damages to the plaintiff.
Conclusion
[19] I
am of a view that, the defendant is liable to compensate plaintiff
for 100% of her proven damages.
[20]
The defendant to furnish the plaintiff with an undertaking in terms
of section 174(4)(a) of Act 56 of 1996.
[21] I
have also concluded that an amount of R803 000.00 would be a
reasonable and a fair amount to the plaintiff’s
general
damages.
Order
[22]
Therefore the following orders are made:
The draft order marked
“
X
” is made an order of this court.
MAHLANGU AJ
REPRESENTATIVE
On
behalf of the plaintiff:
Adv
A Sander
VZLR
INC
49
Parfitt Ave
Parkwell
Bloemfontein
Tel:
051 444 0783
Ref:
DuPlooy/V912
IN
THE HIGH COURT OF.SOUTH AFRICA
X
(FREE
STATE: DIVISION, BLOEMFONTEIN)
Case No. 3416/2019
Before the Honourable
Acting Justice Mahlangu
In the matter between:
MM
NAILE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
LINK NO: 4634464 I
CLAIM NO: 327/1269134/03/1
DRAFT
ORDER
AFTER HAVING HEARD
EVIDENCE, COUNSEL FOR THE PLAINTIFF AND CONSIDERING THE PAPERS FILED,
AN ORDER IS HEREBY GRANTED IN THE FOLLOWING
TERMS:
1.
The defendant is liable
to compensate the plaintiff for 100% (One Hundred Percent) of her
proven or agreed damages.
2.
2.1.
The plaintiff is granted leave to amend her
particulars of claim, which is amended as follows:
2.1.1.
Paragraph
7.5
is
amended
by
replacing--the-
amount
R
703 000,00
with
the amount R 803 000,00.
2.1.2.
The amount of R 11,869,539 as per-paragraph a) of
the prayers to the particulars of claim is replaced with the amount R
11 922 539,00.
3.
4.1.
The defendant shall pay the plaintiff the sum of
R
803 000,00 (EIGHT HUNDRED AND THREE
THOUSAND
RAND}
in respect of general damages.
4.2.
The
defendant
shall
pay
the
abovementioned
amount
into
the
plaintiffs
Attorney's trust account
The Plaintiffs Attorney's
trust account details are as follows:
ACCOUNT HOLDER: VZLR
INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH CODE: 632005
TYPE OF ACCOUNT: TRUST
ACCOUNT
ACCOUNT NUMBER: 3[…]
REFERENCE: M[…]
4.3.
In the event that the defendant
does
not, within 180 (one hundred
and eighty)
days from the date on which this order is handed down, make payment
of the capital
amount,
the
defendant
will be liable for payment
of interest
on such
amount at 11,25% (the statutory rate per annum) compounded and
calculated fourteen days from date of this order.
5.
5.1
The defendant shall furnish the plaintiff
with an Undertaking in terms of Section 17(4)(a) of Act 56 of 1996,
in respect of future
accommodation
of the
Plaintiff in a hospital
or
nursing
home
or
treatment
of
or
the
rendering
of
a
service
or supplying of
goods of a medical and non-medical nature to the plaintiff (and after
the costs have been incurred and upon submission
of proof thereof)
arising out of the injuries sustained
in
the collision which occurred
on
2
December
2017.
5.2
Counsel Fees.
6.
6.1
The
defendant
to
pay
the plaintiff's
taxed
or
agreed
party
and party
cost,
up to and including
the
trial dates
of 23,
24
&
26 May
2023,
and the
date when
this order is made an order of court, including
but not limited to the costs set out in paragraph
6.2
The
reasonable
taxable
reservation
fees
and
qualifying
fees
of
the
following
experts:
6.2.1
Dr JP Marin
-
Orthopaedic
Surgeon
6.2.2
Ms Karla van den Bergh - Rita van Biljon
Occupational Therapists
6.2.3
Mr Ben Moodie - Industrial Psychologist
6.2.4
Mr Johan Sauer – Actuary
7.
In the event of default
on the costs payment, interest shall accrue on such outstanding
amount at the statutory more rate on the
date of taxation /
settlement of the bill of cost, as per the Prescribed Rate of
Interest Act, 55 of 1975, as amended, per annum,
calculated from due
date until the date of payment.
By Order of the Court
Mahlangu
AJ