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[2022] ZAECMKHC 62
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Alexander v Road Accident Fund (3976/2021) [2022] ZAECMKHC 62 (13 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 3976/2021
In
the matter between:
JANINE
DOLORES ALEXANDER
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BESHE
J:
[1]
Plaintiff instituted an action
against the defendant for damages in respect of bodily injuries
she
sustained in a motor vehicle accident on the 10 November 2017. The
action was instituted out of the KwaZulu-Natal division
of High
Court, Durban in February 2020. It was subsequently transferred to
this court by order of the KwaZulu-Natal High Court
at the instance
of the plaintiff, on the 15 September 2021.
[2]
Before I deal with the merits of
the action I will briefly sketch the history of the matter.
Before
the transfer of the matter to this court in September 2021, a notice
of intention had been entered by Hughes-Madondo Inc
attorneys on 16
March 2020. No plea was filed by the defendant until the matter was
transferred to this court on 15 September 2021.
[3]
Once the matter was transferred
to this court, plaintiff sought judgment by default against
the
defendant. A copy of the application for default judgment was sent to
defendant’s claims handler. This did not elicit
any response
from the defendant. The matter was placed on the case flow management
roll on 18 March 2022. Still, there was no response
from the
defendant. The matter was certified trial ready. By then, the date
for the hearing of the default judgment application
had been
scheduled for the 2 August 2022. It was only on the date of trial
that the State Attorney’s office filed a notice
of acting. The
parties agreed that the matter should stand down until the 5 August
2022. On the 5 August 2022
Ms Jeram
appeared on behalf of the
defendant.
Mr Miller
appeared for the plaintiff. A pre-trial
conference minute was handed in. It recorded that the defendant
conceded liability for
90% of plaintiff’s damages. Further,
that parties had reached an agreement in settlement of the following
heads of damages:
Past
loss of earnings
:
R44 897.00
Future
loss of earnings :
R623.20
The
defendant agrees to furnish plaintiff with an undertaking in terms of
Section 17 (4) (a) of the Road Accident Fund Act
,
Act 56 of
1996
, for payment of 90% of such future hospital and / or medical
costs and expenses. Defendant accepted some of plaintiff’s
injuries
but did not admit the fracture of the 5
th
metatarsal and the compression fracture of T12 vertebra and multiple
level disk space narrowing of the lumber spine and required
the
plaintiff to prove same. Further that the court should make a finding
in respect of fractures to the 5
th
metatarsal and T12
vertebra as well as the claim for general damages.
[4]
This agreement was confirmed by
both parties.
[5]
In his opening address
Mr
Miller
pointed out that the defendant did not file a plea.
Therefore, there was no basis for impugning plaintiff’s
injuries also
because defendant has not filed any expert reports in
this regard. He intimated that he will call the plaintiff as well as
an orthopaedic
surgeon in respect of plaintiff’s injuries and
sequelae thereof.
[6]
Ms Jeram
for the
defendant addressed court and sought a postponement of the matter so
as to get proper instructions, having recently been
allocated be
matter. Further that, the defendant would like to have the plaintiff
assessed by experts that the defendant will appoint.
There was no
substantive application for postponement serving before me. Not
satisfied that there was full and frank disclosure
or good cause
shown why the defendant requires a postponement, why the defendant is
not ready to proceed with the matter, I refused
the application.
Plaintiff’s
evidence
[7]
I will deal mainly with evidence
in support of plaintiff’s claim for general damages
which is
for an amount of R880 000.00. This is in view of the fact that
the damages for past and future loss of earnings as
well as the
liability for 90% of plaintiff’s damages has been conceded by
the defendant. Plaintiff was born on 28 March 1956.
She resides in
Extension 10, Makhanda. She is a pensioner, although had it not been
for the accident in question, she would still
be working. She is
drawing a government old age pension. She also gets financial
assistance from her relatives. She used to work
as a general worker
before the accident. The accident occurred on 10 November 2017. She
was visiting her daughter at Malvern in
KwaZulu-Natal at the time. On
the day in question, she had visited the offices of the Department of
Home Affairs. She boarded a
taxi back to her daughter’s home,
which dropped her off next to the gate of her daughter’s house.
In the process of
making a U-turn, the taxi reversed into her,
causing her to fall on her back. She screamed to attract the taxi
driver’s attention.
The driver merely looked at her with his
eyes wide open and drove off. She does not know what happened
thereafter. When she woke
up, she realised she was at R K Khan
Hospital in Chatsworths and her knee was extremely painful. After
being X-rayed, she was fitted
with a plaster of paris (POP) from her
toe to the hip. The POP was only removed after a month. Even though
she was provided with
crutches, she still could not walk her left leg
was numb and her back was sore. She later travelled back to Makhanda
hoping to
continue working. She however could not stand on her leg
but could ambulate using crutches. When she walked to the witness
stand
she was mobilizing with the help of crutches. She no longer has
a social life which involved going to church everyday where they
had
a variety of activities on a daily basis. She cannot walk to church
anymore. Even though she can wash herself, she needs help
with
cleaning her house. She has been robbed of her independence and
privacy as she requires someone to help her with day to day
activities. Her life revolves around sitting down which she can only
do for a short time, lying down which also becomes painful
after a
short while, and walking a bit. The last seven years since the
accident are characterised by pain. She is no longer the
happy person
she used to be before the accident.
[8]
The second witness to testify in
support of plaintiff’s claim was
Doctor P. R. De Bruin
,
an orthopaedic surgeon who examined the plaintiff on 1 October 2019
in Makhanda. From the documentation available to him, namely:
RAF
1 document;
Clinical
records;
Medico-legal
note;
Radiology
reports; etc.
It
emerged that plaintiff sustained the following injuries:
·
Fracture left tibial plato;
·
Fracture left foot;
·
Compression fracture of the thoracic spine;
·
Contused lumber spine with numbness in the
right lower leg.
Doctor
De Bruin
noted that plaintiff’s
ambulation was slow and painful. She suffered from prominent
mechanical pain and tenderness at the
lower thoracic spine. Pain on
the left knee. Left foot is tender with palpation and pain in the
lateral part of the foot. Malalignment
of the 5
th
metatarsophalangeal joint. Radiology examination detected the
following:
Post-traumatic
arthritis in the left knee.
Previous
fracture of the 5
th
metatarsal, slight malalignment of the
metatarsal.
Compression
fracture of the T12 vertebra.
Multiple
level disc space narrowing in the lumber spine.
These
x-rays were done on 1 October 2019. According to
Doctor De Bruin
,
plaintiff will use crutches permanently. She may need a knee
replacement in future. Her spine injury will lead to severe pain.
He
concluded that plaintiff sustained serious injuries and that has led
to permanent impairment and resulted in a significant life
changing
sequelae. Plaintiff’s injuries are associated with being hit by
the taxi and her connecting with the ground when
she fell. That the
injuries are consistent with the accident she described in her
testimony. He opined that plaintiff may not have
been aware of the
injury to her toes because of the plaster of paris that kept them in
place. Hence she did not complain of same
at the hospital where she
was admitted after the accident. It was only upon the plaster of
paris being removed that she became
aware of the pain. There is no
possibility of her post traumatic arthritis improving. Pain killers
will not take all the pain away.
The back pain is going to last for
the rest of her life.
[9]
Understandably, the defendant
did not lead any evidence.
Discussion
[10]
Based on the evidence presented in support of
plaintiff’s case,
Mr Miller
argued that the evidence
shows that there is a causal link between all the plaintiff’s
injuries and motor vehicle collision
in question.
[11]
It is trite that the standard of proof in civil
case is that of proof on a balance of probabilities. Based
on the
evidence of plaintiff and
Doctor De Bruin
, I am of the view
that there is a causal link between plaintiff’s injuries and
the collision that took place on the 10 November
2017 when the taxi
she had disembarked from, reversed into her. She testified that she
fell on her back.
Doctor De Bruin
testified that no major
impact was required for the spine to be injured. It is easily
injured. He also explained how the injury
to plaintiff’s toes
could have been missed immediately after the accident. In her
testimony, plaintiff also alluded to what
appears to have been some
confusion regarding her x-rays. She was required to go back to the
x-ray for another set of x-rays. She
even complained that she had to
wait in the queue for her turn the second time around.
[12]
I am satisfied that the probabilities are such that, on a
preponderance, it is probable that
the injuries sustained by the
plaintiff are as a result of the collision, including the impugned
injuries. Those being: fracture
to the 5
th
metatarsal, the
compression fracture of the 12
th
vertebra and the multiple
level disk space narrowing of the lumber spine.
Quantum
of damages
[13]
There is no doubt that the plaintiff’s life
has changed for the worse if not the worst. She is in
constant pain.
She has lost her independence. She no longer has social life. She is
no longer a happy person. She clearly no longer
enjoys the amenities
of life as a result of the accident. As
Mr
Miller
rightly pointed out, her quality of life has been severely impacted.
As indicated earlier, plaintiff’s claim for general
damages is
for a sum of R880 000.00.
Mr
Miller
drew my attention to awards that were made previously in cases where
the injuries sought to be compensated for were similar to
those of
the plaintiff. I will have regard to those awards. I will however be
alive of the fact that “
The
assessment of awards for general damages with reference to awards
made in previous cases is fraught with difficulty. The facts
of a
particular case need to be looked at as a whole and few cases are
directly comparable
”.
[1]
Further that, I have a wide discretion based on the facts of the
case, to consider what will fairly and adequately compensate the
plaintiff.
[14]
Having considered the facts relating to
plaintiff’s injuries and their life changing sequelae, guidance
from previous awards in similar cases, I am of the view that an
amount of R400 000.00 as general damages is fair and reasonable.
With 90% thereof translating to R360 000.00. As indicated, the
parties have reached an agreement in respect of past and future
loss
of earnings as well as the undertaking in terms of
Section 17 (4)
of
Road Accident Fund Act 56 of 1996
.
[15]
Accordingly, the following order will issue:
Defendant
is liable to pay plaintiff as follows:
Past loss of earnings
R44 897.00
Future loss of
earnings R623.00
General damages
R360 000.00
Total
R405 520.00
Interest
on the sum of R405 520.00 at the prescribed rate of interest
from date of judgment to date of payment.
Defendant
is directed to furnish the plaintiff with an undertaking in terms of
Section 17
(4) (a) of the
Road Accident Fund Act
for
payment
of 90% of such future hospital and/or medical costs and expenses as
may in the future be incurred by the plaintiff in respect
of the
treatment of or rendering of a service or supplying of goods to the
plaintiff, as a result of injuries which the plaintiff
sustained in
the collision of the 10
th
of November 2017, after such
costs have been incurred and upon proof thereof.
Costs
of suit, such costs to include reasonable preparation fees /
qualifying expenses, if any, of Doctor P. R. De Bruin.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff :
Adv: T Miller
Instructed
by
:
DULLABH ATTORNEYS
5
Betram Street
MAKHANDA
Ref:
Mr N Dullabh
Tel.:
046 – 622 6611
For
the Defendant :
Adv: V Jeram
Instructed
by
:
STATE ATTORNEYS
17
Fleet Street
Old
Spoornet Building
EAST
LONDON
Ref:
Alexander, JD/Z04/VJ
Tel.:
066 – 586 7244 / 043 – 706 5100
Date
Heard
:
5 August 2022
Date
Reserved
: 5 August
2022
Date
Delivered
: 13
September 2022
[1]
Minister of Safety and Security v Seymour
2006 (6) SA 320
SCA.