About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2022
>>
[2022] ZANCHC 78
|
|
Duiker v Road Accident Fund (2887/2018) [2022] ZANCHC 78 (28 October 2022)
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
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
2887/2018
Heard:
21/02/2021
Date
delivered:
28/10/2022
Reportable:
YES
/ NO
Circulate
to Judges: YES
/ NO
Circulate
to Magistrates: YES
/ NO
Circulate
to Regional Magistrates: YES
/ NO
In
the matter between:
GIFT
DUIKER
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
EILLERT,
AJ
[1]
This is a judgment in respect of the quantum of the Plaintiff's claim
against the Defendant, the Road
Accident Fund. The parties had
previously settled the merits of the Plaintiff's claim on the basis
that the Defendant would be
liable for 100% of such damages as the
Plaintiff may prove.
[2]
There was no appearance at the hearing of this matter by or on behalf
of the Defendant. On the Plaintiff's
side, Mr Jankowitz appeared and
made application that the Plaintiff be allowed to adduce the evidence
of the Plaintiff's expert
witnesses by way of affidavit in terms of
Uniform Rule 38(2). This application was granted and the affidavit
evidence of the Plaintiff's
expert witnesses was duly placed before
the court. Additionally, the Plaintiff herself also briefly
testified.
[3]
The Plaintiff is employed by the South African National Defence Force
("the SANDF"). She was
a member of the SANDF Women's
Football team and on 28 July 2018 the Northern Cape contingent were
travelling by bus to Saldanha
Bay to participate in the SANDF
National Football Championship. She was 27 years old at the time. At
approximately 11h00 on that
day, and on the N12 national road between
Britstown and Victoria-West, disaster struck when the driver of the
bus allegedly fell
asleep at the wheel and lost control of the bus,
causing the bus to overturn. She lost consciousness. The plaintiff
sustained extensive
injuries in the accident, to wit: a fracture, or
in other words an extensor tendon injury of the right hand, soft
tissue injury
to the right arm, a head injury, soft tissue injuries
to both knees, various bruises, abrasions and cuts and emotional
shock and
trauma.
[5]
She slipped in and out of consciousness in the bus after the accident
due to shock. The Plaintiff was
transported to the Victoria-West
Hospital, and thereafter to the De Aar Hospital where she spent a
night. The following day she
was transferred to 3 Military Hospital
in Bloemfontein, where she received extensor tendon repair surgery.
She was discharged from
hospital on 10 August 2017. The Plaintiff had
follow-up treatment on four subsequent occasions, being 21 to 24
August 2017, 30
to 31 August 2017 and 29 to 31 October 2017, and an
occasion when she received surgery on her right knee.
[6]
The Plaintiff has been left with the following physical sequelae
following the accident: she has permanent
diminished finger flexion
and extension of the third to fifth fingers of her right hand,
leaving her with a fixed flexion contracture
or what is known as a
claw hand. The accident and operations performed on her right hand
has left her with significant scarring.
The Plaintiff initially
suffered from daily headaches, but the expert witnesses reported that
this has improved. However, the Plaintiff
testified that the
headaches have again become an almost daily occurrence. The Plaintiff
also experiences pain when bending her
right knee and when walking
long distances. She is unable to run. She suffers from fatigue at
times, especially in the afternoons,
from sleep disturbance, and from
neck pain which radiates from the right side of her neck into her
right arm.
[7]
In her summons, the Plaintiff initially claimed compensation for past
hospital and medical costs, future
medical costs, loss of earnings or
earning capacity and general damages. I will proceed to deal with
each claim in turn.
Past
hospital and medical expenses
[8]
The Plaintiff did not persist with this claim, presumably because all
the Plaintiff's costs in this
regard were covered by the SANDF. No
award will therefore be made in respect hereof.
Future
medical costs
[9]
The orthopaedic surgeon, Dr J F Greyling stated that no further
surgery was indicated or possible for
the Plaintiff. In his view
though, the Plaintiff would need physiotherapy for the pain she
experiences in her right knee and for
the strengthening of her right
upper limb. This therapy would include consultations, as well as
ultrasound treatment, interferential
treatment, myofascial
mobilization, shortwave therapy and rehabilitation. The Plaintiff
would further need anti-inflammatory medication
and analgesics. The
total monetary amount for conservative treatment of the Plaintiff in
2018 was estimated at R65,000.00. According
to Ms S Maree, the
occupational therapist, the Plaintiff will further benefit from
treatment by a biokineticist, from occupational
therapy and
psychotherapy.
[10]
In the circumstances I am satisfied that a directive in terms of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, should be
made for the Defendant to issue an undertaking to the Plaintiff in
respect of her future medical treatment and related
costs.
Loss
of earnings or earning capacity
[11]
The Plaintiff completed Grade 12 at school. In 2010 she started her
career with the SANDF, and eventually obtained
the rank of Private,
being a rifleman in the infantry battalion. Part of the Plaintiff's
duties before the accident were to operate
a rifle and a
multi-grenade launcher, and to drive a Ratel combat vehicle. The
Plaintiff regularly qualified for deployment, serving
in two
international deployments and one national deployment before the
accident.
[12]
Following the accident, the Plaintiff is still employed with the
SANDF, but as an administrative clerk in the sports
section. As a
result of her injuries, the Plaintiff can no longer drive a combat
vehicle or perform any of the functions required
from a rifleman. Her
current work is of a sedentary to light nature and is confined to
administrative tasks such as the obtaining
of sick notes, medical
records and sport orders, the handing out of sport equipment and the
organising of sporting events. The
Plaintiff is no longer a candidate
for deployment.
[13]
According to the industrial psychologist, Dr Jacobs, the Plaintiff
would be able to continue in her employment
with the SANDF until the
age of 60. In terms of career progressions, the Plaintiff could have
completed all the courses to qualify
for promotions, and being still
very young at the time of the accident, had a career span of 32 years
ahead of her to improve herself.
In Dr Jacobs' opinion, it was highly
likely that the Plaintiff would have been promoted to a sergeant or
staff sergeant, and was
likely to be promoted to the position of a
warrant officer. The issue of the Plaintiff not being able to be
deployed has a big
impact on her suggested loss of earning capacity,
as the earnings on deployment are significantly higher than what the
Plaintiff's
normal monthly earnings would have amounted to. The
Plaintiff would likely have been deployed ten times from the date of
the accident
until her retirement.
[14]
Dr Jacobs stressed that an appropriate post-morbid contingency
deduction would need to be applied, as the Plaintiff
faces
significant challenges, making it uncertain how her career will
unfold. The Plaintiff has been left emotionally impaired,
and it is
not foreseen that she will excel in a sedentary career. She might
still progress in a sedentary capacity, but will have
fewer
opportunities for promotion compared to being fully operational. It
is impossible that the Plaintiff might retire early or
leave her
employment with the SANDF due to frustrations of not being fully fit
to compete in the SANDF. Should she leave the SANDF,
she will not be
an equal competitor in the open labour market because of her physical
impairments and having no other skills.
[15]
Mr Jankowitz urged the Court to accept the likely career path of the
Plaintiff. This is not disputed by the Defendant
on any grounds, and
I do concur with this approach. According to the actuary, Mr
Whittaker, the Plaintiff's nett loss of income,
applying a
contingency deduction of 15% to her uninjured scenario and 25% to her
injured scenario, amounts to R3,301,719.00. No
past loss of income is
applicable as the Plaintiff was remunerated by the SANDF throughout.
General
damages
[16]
The accident has exacted a significant toll on the Plaintiff. It is
not hard to imagine the pain and suffering
the Plaintiff has gone
through, and which she continues to go through. Where the Plaintiff
was previously a very active young woman,
she is no longer able to
exercise or compete in sports. This has negatively affected her
emotional well-being and her enjoyment
of life. Functional
limitations have been placed on her activities of daily living: her
personal care is done with adapted methods,
she eats with a set-up,
and needs assistance with grooming. Her personal relationships are
negatively affected. The Plaintiff's
home management tasks have been
limited, because she has problems with meal preparation, cleaning,
washing, laundry, and shopping.
The Plaintiff testified that she was
recently admitted again for post traumatic stress disorder, which
confirms the clinical psychologist,
Mr Etzebeth's diagnosis, that the
Plaintiff exhibited symptoms of mild depression, anxiety, and PTSD.
[17]
In quantifying the Plaintiff's general damages, Mr Jankowitz quoted
and relied on the following decisions: Dikeni
v Road Accident Fund, C
& H
[1]
, Volume V, p. B4-147;
Krugel v Shield Versekeringsmaatskappy Beperk, C & B
[2]
,
Volume III, p. 287; Bester v AA Mutual Assuransie Maatskappy Bpk en
'n Ander, C & B, Volume II, p. 279; Wills v Nasson, C
& B,
Volume II, p. 722; Mosia v Federated Employers Insurance Co. Ltd, C &
B, Volume II, p. 15 and Marais v Rondalia Versekeringskorporasie
van
S.A. Beperk, C & B, Volume II, p. 130. I furthermore consulted
the following decisions: Vukeya v The Road Accident Fund,
C & H,
Volume VII, p. B4-1; Vermaak v The Road Accident Fund, C & H,
Volume VII, p. B4 – 86 and Newhouse v The Road
Accident Fund, C
& H, Volume V, p. D5 – 1.
[18]
It is trite law that "
each
case must be adjudicated upon its own merits and no one case is
factually the same as another … Previous awards only
offer
guidance in the assessment of general damages.”
[3]
Bearing
this in mind, and after updating the amount of the previous awards
for increases in the Consumer Price Index, I agree that
an
appropriate award for general damages
in
casu
will
be the amount of R700,000.00.
[19]
In the premise the following order is made:
19.1
The Defendant shall pay an amount of R4,001,719.00 (Four Million and
One Thousand Seven Hundred and Nineteen
Rand) to the Plaintiff in
settlement of the Plaintiff's claim.
19.2
The aforesaid total amount shall be payable by direct transfer into
the trust account of the Plaintiff's
attorneys, details of which are
as follows:
Nedbank
Account
Number: [….]
Branch
Number: 198765
Pretoria
Ref:
JPR/MTKMP3731
19.3
The Plaintiff shall allow the Defendant 180 (One Hundred and Eighty)
court days to make payment of the capital
from date of this court
order, failing which the Plaintiff will be entitled to recover
interest at the applicable interest rate.
19.4
The Defendant shall furnish the Plaintiff with an undertaking in
terms of
Section 17(4)(a)
in respect of 100% of the costs of the
future accommodation of the Plaintiff in a hospital or nursing home
or treatment of or rendering
of a service or supplying of goods to
her, after the costs have been incurred and on proof thereof,
resulting from the accident
that occurred on 28 July 2017.
19.5
The Defendant must make payment of the Plaintiff's taxed or agreed
party and party costs on the High Court
scale which costs shall
include, but not be limited to the following, the quantum of which is
subject to the taxing master's discretion:
-
19.5.1
The fees of Counsel on the High Court scale.
19.5.2
The reasonable taxable costs of obtaining all expert/medico-legal,
addendum, RAF4 Serious Injury Assessment and
actuarial reports from
the Plaintiff's experts which were furnished to the Defendant.
19.5.3
The reasonable taxable preparation, reservation and qualification
fees in respect of all the Plaintiff's experts
in respect of which
the reports were served on the Defendant.
19.5.4
The costs of a consultation between the Plaintiff and her legal
representatives to discuss the terms of this
order.
19.5.5
The reasonable taxable accommodation and transportation costs
(including Toll and E-Toll charges) incurred by
or on behalf of the
Plaintiff in attending medico-legal consultations with the parties'
experts, and consultations with the Plaintiff's
legal
representatives, the quantum of which is subject to the discretion of
the taxing master.
19.5.6
The above costs will also be paid into the aforementioned trust
account.
19.5.7
It is recorded that the Plaintiff's instructing attorneys do not act
on a contingency fee basis.
19.6
The following provisions will apply with regards to the determination
of the aforementioned taxed or agreed
costs:-
19.6.1
The Plaintiff shall serve the notice of taxation on the Defendant's
attorney of record.
19.6.2
The Plaintiff shall allow the Defendant 180 (One Hundred and Eighty)
court days to make payment of the taxed
costs from date of settlement
or taxation thereof.
19.6.3
Should payment not be effected timeously, the Plaintiff will be
entitled to recover interest at the applicable
interest rate on the
taxed or agreed costs from date of allocator to date of final
payment.
19.6.4
The Plaintiff shall not issue a writ prior to the expiry of the
180-day period.
EILLERT,
A
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
KIMBERLEY
For
the Plaintiff: Adv.
D. Jankowitz
Instructed
by: Greyling
Incorporated
SG/DUI1/SM
For
the Defendant: No
appearance
Link:
4447033; REF: 560/12695618/1060/0
(Claims
handler Mpho Given Rathipa)
[1]
Corbett
and Honey, The Quantum of Damages in Bodily and Fatal Injury Cases
[2]
Corbett
and Buchanan, The Quantum of Damages in Bodily and Fatal Injury
Cases
[3]
See:
Brumage v SA Eagle Insurance Company Ltd (C), C & H, Volume IV,
E2 – 33 & E2 - 50