About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2024
>>
[2024] ZAGPPHC 237
|
|
Mitchell v Road Accident Fund (90314/19) [2024] ZAGPPHC 237 (11 March 2024)
REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NR: 90314/19
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES
YES
/NO
(3)
REVISED:
DATE:8
March 2024
SIGNATURE:
In
the matter between:
MARIA
MATHILDA
MITCHELL
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
Delivered:
This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed
down electronically by circulation to
the Parties / their legal representatives by email and by uploading
it to the electronic
file of this matter on CaseLines. The date of
the judgment is deemed to be 11 March 2024
JUDGMENT
MARUMOAGAE AJ
[1]
The plaintiff instituted a delictual claim against the defendant
because of the injuries
sustained in a motor vehicle collision that
took place on 19 January 2018. The collision was between the motor
vehicle that was
driven by the plaintiff and a motorcycle ridden by
an unknown person (or a truck driven by an insured driver).
[2]
The plaintiff seeks damages for past medical expenses, loss of
earnings and general
damages. The plaintiff also claimed damages for
future medical expenses in her particulars of claim, but did not
persist with this
claim in the heads of arguments. The court is
called upon to determine whether the plaintiff is entitled to be
compensated for
any or all of these claims.
[3]
The defendant did not admit liability. This means that the merits
were not settled.
The defendant was not represented on the date of
trial and the attempt to settle the matter yielded no results. The
plaintiff’s
counsel asked that the matter proceed on default
and called the plaintiff to provide oral evidence in court.
[4]
The plaintiff testified that on the morning of the date of the
accident, she was driving
her own car with her three children, and
her neighbour’s child as passengers in the car. She was driving
behind a truck.
She indicated and proceeded to overtake. While she
was overtaking, the driver of the truck swerved towards her direction
to the
right and collided with her car. The collision caused her car
to roll. The accident was caused by the negligent driving of the
truck driver. This is the version that also appears in the heads of
argument that were submitted in support of the plaintiff’s
claim.
[5]
This testimony appears to be totally different from the version that
appears on the
plaintiff’s particulars of claim. In her
particulars of claim, it is pleaded that the accident was between a
motorcycle ridden
by an unknown person and the vehicle driven by the
plaintiff.
[6]
It is alleged further that the unknown person was an insured driver
whose negligence
included failure to: avoid the collision; drive with
due skill, diligence and caution; apply brakes timeously; and keep a
proper
lookout. Most significantly, it was stated that the unknown
person changed lanes when it was dangerous and inopportune to do so.
There is nothing said in the particulars of the claim about the
plaintiff overtaking the truck, let alone her car rolling.
[7]
The plaintiff submitted reports from several experts. Amongst those,
an Orthopaedic
Surgeon, Dr Hein Senske, submitted that the plaintiff
was involved in a motor vehicle accident on 19 January 2018 and
sustained
the following injuries: right shoulder abrasion fracture;
right wrist fracture; left wrist fracture; lower back soft tissue
injury
and soft tissue injury on both knees.
[8]
The court was also furnished with a report from an Occupational
Therapist, Ms Anoet
Rossouw. Interestingly, Ms Rossouw noted in her
report that the plaintiff was involved in a motor vehicle accident on
19 January
2018 while travelling as a driver with her children. But
there was no indication of how that accident occurred and whether it
involved
a motorcycle or a truck. This remains a mystery. Ms
Rossouw observed, however, that due to the injuries sustained, the
plaintiff
is currently not fully suited for her pre-accident work due
to postural tolerance limitations in the form of standing, walking,
bending, sitting, and load handling demands.
[9]
Pieter de Bruyn, an Industrial Psychologists also submitted his
report. In his report,
he observed that the plaintiff’s pre and
post-motor vehicle accident probable earnings appear to have remained
fairly comparable.
However, she cannot function at her workplace as
she used to before the accident because of the ongoing pain and
residual symptoms.
He is of the view that the plaintiff’s
career prospects and associated probable earnings have been truncated
to a mild degree
by the
sequelae
of the sustained motor
vehicle accident injuries.
[10]
An actuary’s report was also submitted to the court. In this
report, it is stated that
it seems the plaintiff did not suffer a
past loss of income. This report also demonstrates that the plaintiff
continues to receive
the same salary that she received before the
accident and her future income would probably be the same
notwithstanding the accident.
[11]
It cannot be denied that the plaintiff has the duty to prove her case
on a balance of probabilities.
This duty must be discharged through
adducing evidence that not only illustrates that there was a motor
vehicle accident but that
the plaintiff sustained injuries that
resulted from the negligence of an insured driver.
[12]
To be compensated, the defendant must admit liability, failing which
the plaintiff must satisfy
the court that the defendant is liable to
compensate her. The plaintiff’s testimony, witness reports, the
case made out on
her heads of argument, submission made by counsel in
court as well as the case that is pleaded on her behalf in the
particulars
of claim, all demonstrate that the plaintiff was injured.
However, the way the accident occurred is certainly not clear.
According
to the plaintiff’s oral testimony, her injuries were
sustained due to the negligence of a truck driver, but it is stated
in her particulars of claim that these injuries were as a result of
the negligence of the unknown person who was riding a motorcycle.
Surely, both versions cannot be true.
[13]
The court is bound to assess the claim for loss of earnings from the
fact that the plaintiff
sustained injuries because of the negligence
of an insured driver and the extent to which such injuries impacted
the plaintiff’s
ability to earn the income that she was going
to earn had the motor vehicle accident not occurred.
[1]
[14]
The plaintiff was a police officer before ‘the alleged motor
vehicle accident’ and
she remains the police officer to date.
There is no evidence that her income has been impacted in any way to
the extent that she
will not be able to make what she would have been
able to had the ‘accident’ not occurred. The actuary’s
report
also clearly demonstrates that the plaintiff will be able to
earn that which she would have earned had the accident not occurred.
Some of the expert witnesses also stated that the plaintiff had been
accommodated at her workplace. There is no evidence before
the court
that suggests that the plaintiff has or will lose earnings because of
the ‘motor vehicle accident’.
[15]
The different versions put before the court during oral testimony as
supported by the heads of
argument and the particulars of the claim
make it difficult for me to accept that there was any accident in
which the plaintiff
was involved. Surely, an accident is a factual
event the facts thereto cannot evolve as time goes by. Its either the
accident was
caused by a truck driver or a motorcycle rider or at the
very least, both at the same time. But the plaintiff’s oral
testimony
points to one thing and the particulars of claim point to
another. In my view, this is destructive to the plaintiff’s
claim.
[16]
I am also not satisfied that the plaintiff has lost any earnings or
will lose any income as a
result of the alleged ‘motor vehicle
accident’. It is worth noting that a ‘without prejudice’
offer in
full and final settlement of the claim was made by the
defendant without admitting liability. It is not clear how the
plaintiff
responded to this offer.
[17]
The fact that there are two versions before the court does not
necessarily mean that the plaintiff
was not involved in a motor
vehicle accident that may warrant the payment of general damages and
past medical expenses. Had the
defendant not made an offer, I would
have been inclined to also dismiss these two claims.
[18]
However, by making an offer, the defendant appears to accept that an
accident did occur that
warrants some compensation being provided to
the plaintiff. For this reason and in fairness to the plaintiff, it
is justified to
postpone the issue of general damages and past
medical expenses
sine die
to allow the defendant to assess
these claims and make an offer so that this matter can be finalised.
[19]
In the result, I make the following order:
1.
The plaintiff’s claim for loss of earnings is dismissed.
2.
The claims for general damages and past medical expenses are
postponed
sine die
.
3.
No order as to costs.
C MARUMOAGAE
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Counsel
for the applicant:
Adv
L Keijser
Instructed
by:
Gert
Nel Incorporated
Counsel
for the respondent:
No
Appearance
Instructed
by:
No
Appearance
Date
of the hearing:
08
November 2023
Date
of judgment
11
March 2024
[1]
Mtshweni
v Road Accident Fund
(34393/2020) [2023] ZAGPPHC 736 (30 August 2023) para 13.