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[2022] ZAFSHC 8
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Van der Walt v Road Accident Fund (1668/2016) [2022] ZAFSHC 8 (28 January 2022)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no: 1668/2016
In
the matter between:
CHARLES
TJAART VAN DER WALT
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BY:
C NEKOSIE
AJ
HEARD
ON:
25
and 26 JANUARY 2022
DELIVERED
ON:
28 JANUARY 2022
[1]
The plaintiff instituted a claim against the defendant in terms of
the provisions of
section 17
of the
Road Accident Fund Act, 56 of
1996
for future medical expenses, future loss of earnings and earning
capacity and general damages totalling an amount of R 2 269 470.00
as a result of bodily injuries sustained in a motor vehicle
collision.
[2]
The collision occurred on 12 December 2012 at approximately 09:20 and
at the T-junction
between Voortrekker and Malan Street, Senekal, Free
State Province. The plaintiff had right of way when the insured
driver entered
the T-junction causing the plaintiff to drive into her
motor vehicle and falling off his motorcycle.
[3]
The merits of the matter are settled as per the court order by
Motimele AJ on 17 February
2017 and the defendant is liable for 100%
of the plaintiff`s proven damages as a result of injuries sustained
by the plaintiff
in the motor vehicle collision. This court is called
upon to adjudicate and determine the quantum of the plaintiff`s
future medical
expenses, general damages and future loss of
earnings.
[4]
The plaintiff was admitted to Dihlabeng Hospital in Bethlehem having
sustained the following
personal injuries:
4.1
A degloving injury to right carf
4.2
Abrasions an small cuts on the exposed areas of his body
4.3
Momentary loss of consciousness
4.4
A long laceration of the left knee (during evidence the plaintiff
referred to both knees).
[5]
This matter was set down for trial on numerous occasions since 2016.
The defendant`s
attorneys of record withdrew from the matter on 10
September 2020. Subsequent to the pre-trial, numerous correspondence
were exchanged
between the parties. The notice of set down was served
via email on the defendant on 9 November 2021. The state attorney`s
office
confirmed that they are aware of the trial date but informed
that the defendant failed to instruct counsel therefore there would
be no representation.
[6]
Adv Zietzman SC appearing on behalf of the plaintiff requested the
Court to proceed with
the trial. I was satisfied that the RAF was
duly notified of the trial date. Taking guidance from
Dichabe v Road Accident Fund
[1]
where
the court condemned the persistent failure of the RAF to ensure that
they were represented at trial, I acceded to the
request and ordered
the trial to proceed on the basis that RAF was in default.
[7]
The plaintiff testified and the expert evidence was presented to
court by way of affidavit
as I deemed it expedient and cost effective
in the circumstances.
[8]
The plaintiff, aged 45 years, confirmed his involvement in the
accident on the date
and time referred to herein. Consequent to the
accident he spend a week in Dihlabeng Hospital and could not work for
two months.
He was an unqualified mechanic. He lost his clientele
during his period of inability and had to sell some of his equipment
to make
ends meet. The workshop was burgled and his tools were stolen
which further crippled his business.
[9]
He confirms the injuries as outlined herein above but added that both
his knees were
lacerated. The right calf was the most severe of the
injuries. He underwent cosmetic surgery and will require further
medical attention
in respect of his right calf. He is no longer able
to do heavy lifting and therefore he cannot continue to be a
mechanic. He explains
that he experience pain in his right knee and
calf when driving for extended periods. This is in contrast with the
fact that he
drives a tractor for between eight and twelve hours per
day in his present employment in Texas, USA where he works on a farm.
[10]
It appears, peculiarly so, that the accident has change the
plaintiff`s fortunes for the better. He
had an up and coming car
repair shop in a small town, Senekal, with a relatively limited
market and a net income of R 7000.00 to
R 8000.00. After the accident
he proceeded to earn approximately R 24 000.00 per fortnight as
a tractor driver in Texas.
[11]
The affidavit
Dr Louis Francios Oelofse,
the orthopaedic
surgeon, was presented to court. He compiled his reports on 13 May
2015 and 29 January 2019. In the later of his
reports, he states that
the plaintiff will require arthroscopy and debridement of both knee
joints with possible bilateral medial
meniscus repair and the
accompanying rehabilitative procedures. He holds the view that the
plaintiff should not do physical labour.
[12]
Prof Frederick
Johannes Jooste
, plastic surgeon, concludes that the plaintiff
reached maximum medical impairment and remains with serious permanent
disfigurement.
[13]
Anthea Jansen
, occupational therapist, opines that the
plaintiff would be better accommodated in a sedentary to light
category of work as this
will reduce the strain on his leg. The
plaintiff ability to engage in his pre-accident work as a mechanic
has been reduced.
[14]
Dr
Everd Jacobs
, industrial psychologist, categorised the
plaintiff`s earning capacity as a semi-skilled in the non-corporate
sector. He should
be able to reach the top level not later than age
50 years.
[15]
Lark-Hee Choi
, Munro Actuaries, considered that a whole person
impairment of 15% is present. He illustrates a future post-morbid
contingency
deduction of 30% on a 15% contingency differential and
concludes with a total loss of income of R1 983 660.
[16]
The plaintiff’s claim for damages resultant from the accident
is aimed to recover the difference
between the positions as it
is after the act of damage, and as it would have been if the act were
not committed. The plaintiff
has to discharge this onus on a
preponderance of probability
[2]
.
This matter proceeded on a default basis and the evidence presented
by the plaintiff went unchallenged.
[17]
In determining the general damages to be awarded to the plaintiff I
take cognisance of the fact that
he has reached maximum medical
impairment and his condition is likely to improve with the suggested
medical procedures.
[18]
Adv Zietzman SC proposed R200 000 as an appropriate amount for
general damages and referred to
number of authorities where similar
injuries was sustained to support his submission
[3]
.
In my view the cases referred to are distinguishable from the
present. The plaintiff`s injuries did not have any severe
psychological
effect on him. The plastic surgery has largely
diminished the scaring on his carf. He still has full use of his leg
despite it
paining when engaged in prolonged activity. In this case
R150 000 for general damages is appropriate.
[19]
When considering the suggested contingency I have regard to
Road
Accident Fund v Kerridge
[4]
,
where
the Court of Appeal said:
‘
It is trite
that general contingencies cover a wide range of considerations that
vary from case to case.
5
Five and
15% for past and future loss, respectively, have become accepted as
'normal contingencies'.’
[20]
In the case of
Road
Accident Fund v Guedes
[5]
,
the
court said that t
here
are no fixed rules as regards general contingencies. There are
however some guidelines to identify a proper contingency to
be used:
i.e 25% for a child, 20% for a youth and 10% in middle age with ½
% added per year until retirement. (see
Goodall
v President Insurance Co Ltd
1978 (1) SA 389
(W)
)
[21]
Considering the physical and emotional deficits of the plaintiff as
has been established herein above
and the high probability that the
plaintiff will return to the USA to continue to earn the higher
income and the fact that his
condition is likely to improve with
further medical treatment I find that a 20% contingency on injured
earning is more appropriate
in the circumstances. The loss earning
would thus be R1 884 370.
Order
Thus the order I make is
the following:
1. The
amount for damages to be awarded to the Plaintiff is R150 000
for general damages plus R1 884
370 totalling
R2 034370.00
2. The
draft order marked X is made an order of court.
C NEKOSIE, AJ
For
the plaintiff:
Adv.
J Zietsman SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
For
the defendant:
NO
APPEARANCE
[1]
2020
JDR 1266 (GP)
[2]
Rudam
v Road Accident Fund 2003 (2) SA 234 (SCA)
[3]
Marias
v Rondalia Versekeringskorporasie van SA BPK 1969 (2E7) QOD 130 (O);
Tobi v Road Accident Fund 2013 JDR 2097 (ECG)
[4]
2019
(2) SA 233
(SCA)
at 240 para30
[5]
2006
(5) SA 583
(SCA)