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[2022] ZAMPMBHC 15
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Nkuna v Road Accident Fund (1180 / 2018) [2022] ZAMPMBHC 15 (4 April 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 1180 / 2018
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
04 April 2022
In
the matter between:
BHEKI
ACE
NKUNA
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
Delivered:
This judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time
for hand-down is
deemed to be 10H00 on 04 April 2022.
JUDGMENT
RATSHIBVUMO J
[1]
This is a claim for general damages,
medical expenses and loss of earnings totalling R8 320 000.00
by the Plaintiff, against
the Road Accident Fund. The trial proceeded
by way of default meaning, there was non-appearance for the
Defendant. There was no
separation of the quantum from the merits in
terms of Rule 33(4), and therefore, the trial proceeded in respect of
both the merits
and the quantum.
[2]
The court received evidence on behalf of
the Plaintiff from various experts by means of affidavits containing
reports prepared by
them. These would entail Exhibit A, being an
affidavit and report prepared by the Orthopaedic Surgeon, Dr. Tladi;
Exhibit B, being
an affidavit and a report by a clinical
psychologist; Exhibit C being an affidavit and a report by the
Occupational Therapist and
Exhibit D, being an affidavit and a report
by the Industrial Psychologist.
[3]
For reasons that this judgment is handed
down based on the merits of the case, I shall not reflect much of the
expert evidence contained
in the four exhibits referred to above as
they mainly deal with the quantum. It suffices for purposes of this
trial that the report
by the Orthopaedic Surgeon can be summarised as
follows. The Plaintiff sustained right femur fracture following a
motor vehicle
accident and was given surgical treatment. His fracture
has united with implants that may need to be removed. The X-ray
showed
signs of infection. The right limb has healed with a
shortening that can be managed with a shoe raise. However, provision
for surgical
intervention should be made. He also has massive scars
that need plastic surgeon evaluation. He also has varicose veins that
need
vascular surgeon to nexus with the accident. His orthopaedic
injuries have resulted with a WPI of more than 30%.
[4]
The only
viva
voce
evidence led is that of the
Plaintiff. He testified that on 02 July 2014 at about 19h30, he was a
driver of a motor vehicle with
registration number DWM 869 MP along
R40 Road. He was traveling alone driving from Kabokweni to Nelspruit
at a speed of 60 km/h.
The speed limit in the area was 100 km/h. The
road had two lane heading the same direction as him, and two lanes
going the opposite
direction. He was on the left or outer lane when
at that stage, his motor vehicle was hit from behind by another motor
vehicle
that did not stop. After being hit from behind, he lost
control of his motor vehicle and it rolled several times to the left
side
of the road. He was unconscious for a while but when he regained
consciousness, he was inside the ambulance but still at the scene
of
the accident. He was later taken to the hospital where he was
admitted for three months.
[5]
When he was discharged, he went to report
the accident with the police only to find that the Accident Report
was already registered.
He was also made aware by the police that the
accident was reported as a single motor vehicle accident. He was
therefore not the
person who gave the information about the accident
to the police officers who completed the Accident Report. As a
result, he disputed
that the cell phone number given as his in the
Accident Report was his. The address provided therein was however his
work address
and the names given were his. At the time of the
accident he worked as a store manager for Store City. No evidence
about his income
was led.
[6]
This evidence concluded case for the
Plaintiff.
[7]
Plaintiff’s Counsel addressed the
court asking for the award as claimed as the Road Accident Fund was
liable. He submitted
that the injuries were direct result of
negligent driving by the insured driver whose details were unknown.
[8]
This case has striking resemblances of case
no. 3214/2019 between Monate and the RAF, whose judgment is also
handed down today.
The same legal representatives are also involved
in that matter. This should explain the similarities in the judgment.
[9]
I
must emphasise at this stage that the onus to decide whether the
insured driver was negligent and to what extent, rests on the
plaintiff, who must show on a balance of probabilities that the
insured driver was negligent and that the negligence was the cause
of
the collision from which he sustained the bodily injuries. There is
no onus on the Defendant to prove anything.
The
Defendant may have an evidentiary burden to rebut a
prima
facie
case established by the Plaintiff.
[1]
[10]
The
liability of the Road Accident Fund finds its basis and application
from the Road Accident Fund Act
[2]
which provides that the Fund shall
be
obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of any
bodily
injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the driving
of a motor
vehicle by any person at any place within the Republic, if the injury
or death is due to the negligence or other wrongful
act of the driver
or of the owner of the motor vehicle or of his or her employee in the
performance of the employee's duties as
employee: Provided that the
obligation of the Fund to compensate a third party for non-pecuniary
loss shall be limited to compensation
for a serious injury as
contemplated in subsection (1A) and shall be paid by way of a lump
sum.
[11]
It follows from the above that the
liability of the Fund shall follow the injury sustained by the
Plaintiff only if he is able to
prove on a balance of probabilities
that the injury was caused by the negligent driving of an insured
driver. The Fund’s
liability is excluded where the cause of the
injury cannot be linked to the negligent driving of an insured driver
or where the
cause can be attributed to the Plaintiff alone. It is
trite that the Fund would not be liable in instances where the
claimant is
the driver of a motor vehicle that was involved in an
accident alone without the involvement of another motor vehicle in
any manner
as this would be indicative of sole negligence on the part
of the driver or the claimant.
[12]
The Plaintiff
in
casu
must have been conscious of the
onus on his shoulders the moment it came to his attention that the
Accident Report reflects that
he lost control of the motor vehicle
and it rolled, without any involvement of another motor vehicle. The
details of the officer
who completed the Accident Report were there
in the report. No efforts were done to rectify those contents if they
were not reflective
of what happened. There is no doubt that
rectifying these would not be easy without presenting the police with
evidence that proves
the involvement of another car.
[13]
While the task is obviously not an easy
one, it should however be simple if there was indeed another motor
vehicle involved. Before
there could be a “correction” of
Accident Report, the police would want an explanation on why he could
not give this
explanation on the date of the incident at the scene of
the accident. Not only do the hospital records reflect that the
Plaintiff
was fully conscious upon admission, but his own evidence is
to that effect. He testified that he regained consciousness while
inside
the ambulance at the scene. He concedes that the details
entered in the accident report by the police, were his, in
particular,
his names and his employment address. No explanation is
given on how these found their way into the Accident Report. The only
logical
way that this can happen, when the report is completed by an
officer who does not even know the Plaintiff is that the Plaintiff
provided these to the police. It is however surprising that it is
only this information that the Plaintiff is able to confirm but
he
distances himself with the part dealing with how the accident
happened.
[14]
Some of the steps that the Plaintiff could
have walked in “rectifying” the faulty accident report
could entail obtaining
photographs of the motor vehicle taken soon
after the accident so as to demonstrate the rear damages and/or paint
of the other
motor vehicle in it, if any. It appears this was not
done or no such evidence was presented before me. The officer who
completed
the Accident Report was not called to give evidence. All
these steps were also not undertaken for purposes of trial.
[15]
It
follows therefore that the Plaintiff failed to show on balance of
probabilities that the injuries he sustained were a direct
result of
negligent driving by the insured driver. The court has sympathy for
the Plaintiff over the injuries sustained in the
accident. As Steyn J
puts it, it would be inappropriate to make an order burdening the
already strained Fund based on sympathy
one has for the Plaintiff.
[3]
For reasons stated above, the claim should fail. There shall be no
costs order as the action was undefended.
[16]
The following order is therefore made:
[16.1] The claim is
dismissed.
[16.2] No cost order is
made.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
FOR
THE PLAINTIFF
: ADV. MOGAGABE
INSTRUCTED
BY
: MACBETH ATTORNEYS
MBOMBELA
FOR
THE DEFENDANT
: NO APPEARANCE
DATE
HEARD
: 14 FEBRUARY 2022
JUDGMENT
DELIVERED : 04
APRIL 2022
[1]
Ninteretse
v Road Accident Fund
(29586/13) [2018] ZAGPPHC 439 (2 February 2018) per Raulinga J
[2]
See
section 17(1)
of the
Road Accident Fund Act, 56 of 1996
.
[3]
Auret
N.O obo Kieser v Road Accident Fund
(14206/2014)
[2020] ZAWCHC 192
(28 April 2020) at para 62.