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[2022] ZAFSHC 256
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Van der Westhuizen v Road Accident Fund (1677/2018) [2022] ZAFSHC 256 (20 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
1677/2018
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
JOHANNES
NICOLAAS VAN DER WESTHUIZEN
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
5
OCTOBER
2022
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
20
OCTOBER 2022
[1]
On the evening of 6 September 2014 the Plaintiff’s vehicle
collided with a tractor
outside Bloemfontein. He sustained
inter
alia
, a fracture of the right acetabulum, a dislocated femoral
head of the right hip, a frontal lobe injury and various lacerations
and bruises. Alleging that the driver of the tractor caused the
accident by his negligence, the Plaintiff came to this Court claiming
an amount of R3 801 800.00 damages, of which the amount of
R1 307 000.00 is claimed under the heading of General
Damages.
[2]
At the commencement of the
hearing, the Court was informed that the parties have come to
an
agreement on most of the issues in dispute. The agreement was reduced
to writing, and handed in to be made an order of Court.
In terms of
the agreement, marked “X” the only issue that needs to be
adjudicated is the amount of General Damages.
To this end, the
parties agreed that the expert reports filed by the Plaintiff would
be accepted as evidence in this respect.
[3]
In a medical legal report by dr. Julius Preddy dated 7 June 2022, it
is mentioned
that the Plaintiff is 29 years old. It appears from this
report that the right hip of the Plaintiff was treated with a plate
and
screws. Dr Preddy also mentions that the Plaintiff’s right
knee may develop post traumatic osteoarthritis, for which he would
need surgery in the future. As far as the right hip is concerned, the
Plaintiff would need a hip replacement in the near future.
This
procedure would need to be repeated every 12 to 15 years.
[4]
According to Khanyisa Ntshengulana, an occupational therapist, the
Plaintiff is only
suited for sedentary, light and low-level medium
work. Dr. Liesl Smit of the Department of Neurology of the Free State
University,
mentions in her report that the Plaintiff had sustained a
frontal lobe injury which presented one year later with a
tonic-clonic
epileptic attack. He showed signs of frontal lobe
dysfunction, and symptoms that could be epileptic in origin.
[5]
The Plaintiff himself testified in support of his claim for General
Damages. He confirmed
the injuries to his knee, pelvis and hip. After
the accident he received treatment in hospital until 14 September
2014. At the
time of the accident, he was employed as a project
assistant, but he was recently retrenched. He further testified that
he always
loved the outdoors and sport, but he is now severely
restricted in those areas. His hip and knee are causing him the most
problems.
He used to be a Varsity Cup rugby player, where he played
for the Shimlas. At the time of the accident, he was negotiating a
contract
to play professional rugby in Georgia. The accident brought
an end to his rugby career.
[6]
When it comes to the awarding of general damages, a Court has a wide
discretion to
award what is considered a fair and adequate
compensation to the injured. Such discretion may be exercised with
the guidance of
previous awards made in comparable cases, but this is
not a hard and fast rule that should be strictly applied.
[1]
[7]
Both counsel appearing in the matter referred the Court to a number
of cases where
amounts in excess of R1 million or less were awarded
for general damages in cases where the claimants have suffered
orthopaedic
and head injuries. Mr. De la Rey, appearing for the
Plaintiff, submitted that an amount of R1 million would be fair and
just in
the circumstances of this case.
[8]
The Court is mindful of the fact
that the Plaintiff has lost an apparent promising career
in rugby. He
is now compromised as far as other physical activities are concerned,
and further medical interventions are waiting
for him in the future.
In addition, he is now unemployed. In the premises, I agree with mr.
De la Rey that an amount of R1 million
would be fair and adequate for
the Plaintiff’s general damages.
[9]
The following order is made:
1.
The Agreement marked X is made an order of Court, as amended.
2.
The Defendant is ordered to pay to the Plaintiff an amount of R1
million for General Damages,
less 10% resulting in the amount of
R900 000.00.
P.
J. LOUBSER, J
For
the Plaintiff:
Adv.
H. De la Rey
Instructed
by:
Peyper Lessing
Attorneys
Bloemfontein
For
the Defendant:
Me.
K.
Mkhwanazi
Instructed
by: The
Road Accident Fund
Bloemfontein
[1]
See RAF
v Marunga
2003 (5) SA 164
(SCA)