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[2021] ZAGPPHC 394
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Matsepe v Road Accident Fund (53932/2015) [2021] ZAGPPHC 394 (10 June 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO
:
53932/2015
DATE:
2019.10.25
10 In the matter between:
-
FENK JACOB MATSEPE
and
ROAD ACCIDENT FUND
JUDGMENT
MAVUNDLA,
J:
Judgment, paragraph [1].
All the paragraphs should be in
20
square brackets. The plaintiff is Mr Fenk Jacob Matsepe, with
Identity Number […]
. A major male maintenance foreman born on
the […].
Residing at […]
[…] Street, […], P[…] in the North West
Province. Instituted an action against
the defendant in terms
of the
Road Accident Fund Act 56 of 1996
(claim and damages) he
suffered as a result of injuries sustained when a collision occurred
on 16 November 2011 at or near N12 road,
Elansfontein Farm, between a
motor vehicle with registration letter and number […] he was
driving, and a motor vehicle with
registration number and letters
unknown to the plaintiff, herein after referred to as the insured
vehicle, then and there driven
by an unknown driver herein and after
referred to as the insured driver.
[2]
The plaintiff alleged in his particulars of claim that the unknown
10
insured driver was the sole cause of the collision in that he was
negligent in one
or all or various ways which were alleged in
the particulars of claim. I do not intend to chronicle all those
alleged matters of
negligence. Next paragraph.
[3] The
plaintiff has been employed for 20 years since November 1998. The
injuries
as a result of the collision were:- 3.1 head injury, 3.2
chest injury, 3.3 shoulder dislocation, 3.4 wrist injury right, 3.5
amputation
of the right finger, 3.6 injury of the lumbar spine. It
would seem that there was an
20
undetected injury of the clavicle on his right and this was not
contested.
Next paragraph
[4]
The plaintiff as the result of the injuries he sustained from the
accident claimed
alleged damages in an amount of R3 746 901.00, made
as follows . Past loss of income, R308 179.00, future loss of income,
R2 238
722.00, total loss, R2 546 901.00. In respect of general
damages, an amount of R1 000 200.00 was claimed thus making the sum
total
of the amount then R3 746 901.00. I will repeat again, R3 746
901.00.
[5]
it was further alleged that the plaintiff has suffered one or more
serious injuries
as contemplated by
section 17(1)
read with
section
17(1)(A)
of the Act. The plaintiff has complied with
regulation 3
of
the Road Accident Fund, relation of 208 and injuries referred to in
7, referred to above has
10
been assessed.
[6]
In this particular case, it would seem that these were not assessed
in accordance
with the regulations resulting in the parties
requesting that the Court should deal with the aspect of general
damages.
[7]
The plaintiff was called to the stand and he testified to that in
support of
his claim. According to him, the accident occurred on 16
November 2011 at or near the N12 road Elandsfontein Farm when he
passed
the entrance of Fochville where there is a T-junction. There
was a curve to
20
the right.
There was a vehicle which
came from the opposite direction and it was at night, almost
midnight. They both were dimming and brightening
to each other as
they were approaching the curve. The plaintiff was already in the
intersection, rather in the curve when the other
vehicle travelling
in the opposite direction suddenly switched on its sportlights and
headlights.
The plaintiff thought
that this vehicle was coming towards him and he then swerved slightly
to the left. With his left set of wheels
on the gravel of the
tar road, as a result, he lost control of his vehicle which the
rolled. It was in the middle of the
night.
[8]
The other vehicle was big and had lights on top. The plaintiff tried
to
bring the vehicle back onto the road to no avail. The reason he
swerved to his left was because he saw as if the vehicle was
coming towards him. When he saw the other vehicle switching on
his sportlights, he reduced his speed and swerved to the left.
That
was all that he could do. After his vehicle rolled, someone came to
his vehicle and took him out of the vehicle.
He then realized that his
right finger has been severely injured. He was injured on his left
shoulder. His right middle finger was
subsequently amputated.
Immediately after the accident, he was taken to Leslie Williams
Hospital.
[9]
20 He was referred to a statement which he has since handed in as
EXHIBIT A in the
yellow flagged bundle with index discovered
documents. He confirmed that this was the statement taken from him.
He confirmed that
or rather he stated that the accident was caused by
the driver of the unknown vehicle who switched on his sportlights and
headlights
as result blinding him. Next paragraph.
[10]
Under cross-examination, the plaintiff said
inter
alia
that no streetlights in that area. The road was curving from his
right to his left. When the vehicle approached from a distance,
he
dimmed his lights, and the other vehicle also dimmed his lights.
They dimmed and
brightened each other interchangeably as they were approaching each
other. As the other vehicle approached the curve
it
10
switched on its sportlights and brights as a result blinding the
plaintiff. His
vehicle was in motion. He deaccelerated by removing
his foot from the acceleration pedal. The last he saw was when the
other driver
blinded him with his sportlights and his headlights.
He continued driving. He
took his foot off the pedal. He tried to swerve to give it way and
his set of wheels got off the tar road.
When he was close to the
curve the other driver was still far. As they were about to pass each
other, the other driver put his
bright lights on. When he was
20
putting his bright lights and dimmed, he was also doing the same and,
in the
curve, the other driver switched on his bright lights.
The other vehicle was
about 20 meters away from him. They were both inside the curve ...
[inaudible]. It was not the first time
for him to travel along the
road. There are no street lights. It is not surprising to me that
another vehicle brightening another
with its headlights. He
said that if the road was straight, he would have continued to drive
straight.
It was put to him that
why did you not stop his vehicle when he was blinded by the bright
lights. The plaintiff said that his vehicle
was in motion, decides
removing his foot from the accelerator to reduce speed, he swerved to
the left to give the other vehicle
way.
[11]
under cross, under re-examination, he said that the other vehicle
with its brigt
lights was coming from the opposite direction.
When asked what he did to avoid a collision he said he took his foot
off the accelerator
slightly and swerved to the left as he thought
the other vehicle was coming towards him. Next paragraph.
[12]
it is trite that the plaintiff bears the onus of proving his case
against the defendant. The defendant
in his pleadings denied any
negligence on the part of the insured unknown driver and contended
that the plaintiff was the
sole cause of the accident and in the
alternative alleged that the plaintiff was also contributory
negligent. As such there should
be a apportionment. The defendant did
not call any witnesses to refute the plaintiff’s version. Next
paragraph
[13]
The test to be applied in order to weigh the insured driver’s
conduct is referred to in the case
of Kruger v Coetzee 1966 (2) SA
(428) A f43O E, where the following was stated.
“
Each case in which
it is alleged that a motorist is negligent must be decided on its own
facts. Negligence can only be attributed
by examining the facts of
each case. Moreover, one does not draw inferences of negligence on a
...narrow [inaudible] approach.
One must consider the totality of the
facts and then decide whether the driver has exercised the standard
of conduct which the
law requires. The standard of care so
10
required is that which a reasonable man would exercise in these
circumstances and the degree
of care will vary to the degree of the
circumstances. In all the cases the question is whether the driver
reasonably in all circumstances
are foreseeing the possibility of a
collision.”
Close quote. Next
paragraph.
In the matter of C
Havers
[spelt] Corporation v Duncan Dock Cold Storage
2000(1)
SA 827 (SE),
it was held that:
“
Whether what had
been labelled as the relative theory of negligence
(articulated
in Mukheibier [spelt] and another v Raath [spelt] and
another
1993 (3) SA (1065) (SCA) at 1077 E to F)
or
had been labelled the absolute or abstract theory of negligence
(articulated in Kruger V Coetzee 1966 (2) SA (428) at 3OE-F)
was
adopted. It should not be overlooked that artmaking the true criteria
for
Determining negligence
was whether in the particular circumstance the conduct complaint of
fell short of the standard of the reasonable
person.
Further, that whichever
formula were adopted there should always be a measure of flexibility
to accommodate rather opening quote,
“grey area” cases.
The need for various limitations to the broadness of the incorrect
where circumstances so demand
had been long acknowledged. It has thus
been recognized that while the precise or the exact manner in which
harm had occurred would
not have been foreseeable. The general manner
of its occurrence the two have been reasonably foreseeable.”
Next paragraph.
15
There is only the value of the plaintiff as pointes here in above.
The defendant did not
call any witnesses to refute the value of the
plaintiff. It was contended that the plaintiff failed to stop his
vehicle at the
moment
20
he was blinded by the sports and headlights of the other vehicle in
that he was therefore
negligent and the sole cause of the accident.
I do not agree with this
proposition. It can hardly be expected of a driver in the situation
as the plaintiff was in to apply their
brakes to bring his vehicle to
a sudden halt because that itself is a dangerous manoeuvre which
might
result in the vehicle
skidding or swerving into the path of the oncoming vehicle.
Besides, faced with a
sudden emergency as the plaintiff was, promp reaction is required
even if it is a wrong decision, there is
no negligence that can be
attributed to him. His action of swerving to the left would only have
been to avert a head-on collision
and was therefore in my view
reasonable. Next paragraph.
[16]
I must hasten to refer to the matter of McIntosh v Premier ...
[indistinct]
10
KwaZulu Natal and another, where it was held:
“
As is apparent
from the March [inaudiable] of Holmes JA in Kruger v
Coetzee 1966 (2) Sa (42)
A (430) E to F. The issue of negligence itself involves a twofold
enquiry. The first is, was the harm reasonably
foreseeable. The
second is. Were the diligence part ...[inaudible] familiars take
reasonable steps to gather against such occurrence
and d, the
defendant failed to take those steps. The answer to the second
enquiry is frequently expressed in terms of a duty. The
foreseeability requirement is more often than not assumed, and the
enquiry is said to be simply whether the defendant had a duty
to take
one or another step, such as, perform some or other act, positive act
and if so whether there is the failure on the part
of the
Defendant to do so to
amounted to a breach of their duty”
It was further held that:
“
the crucial
question, therefore, is the reasonableness or otherwise of the
respondent’s conduct. This is the second leg of
the negligence
enquiry. General speaking the answer to the enquiry depends on the
consideration of all the relevant circumstances
and involves a value
10
judgment which is to be made by balancing various competent
considerations including such
factors as the degree or extent of the
risk created by the actor’s conduct. The gravity of possible
consequences in the bearing
of eliminating the risk of harm. See Cape
Metropolitan Council v Graham 2001 (1) SA (1197) (SA) 7.”
Next paragraph.
[17]
In my view, the plaintiff found himself in a sudden emergency
situation which was
created by the other driver who switched on his
sportlights and headlights when he was already about 20 meters away
from the
20
plaintiff headlights when he was already about 20 meters away from
the plaintiff
inside the curve. In my view, the conduct of the
insured driver was unreasonable if not reckless.
He must have foreseen
that by switching his sportlights as well the headlights to bright at
that particular moment, did
blind the driver of the
oncoming vehicle, in this case, the plaintiff and this would result
in a collision or the plaintiff being
forced to swerve to his left
off the road.
The insured driver in my
view must have realized that the vehicle of the plaintiff veered off
the road and overturn0ed. He failed
to stop to render assistance and
provide his details. This on its own is indicative of a matter of
guilt on his part. That is why
he drove away. In this regards vide
McIntosh v Premier KwaZulu Natal and another where the Court held
that:
10
“The crucial question, therefore, is the reasonableness or
otherwise of
the respondent’s conduct. This is the second leg
of the negligence enquiry. General speaking, the answer to the
enquiry depends
on a consideration of all the relevant circumstance
and involves a value
20
judgment which is to be made by balancing various competent
considerations including such
factors as the degree or extent of the
risk created by the actor’s conduct. The gravity of possible
consequences and the
value of eliminating the risk of harm.”
[18]
Next paragraph
Insofar as it is
contended that in the alternative there should be apportionment it
needs mentioning that the defendant as the party
who alleges that
there was contributory negligence on the part of the plaintiff, bore
the onus of proving this.
There was no evidence by
the defendant to discharge this onus. Vide Mobile ...[inaudible]
Southern Africa Pty (Ltd) v Machin [spelt]
1965 (2) SA (706) (AD) 711
E to G, accordingly this contingency in my view must fail. Next
paragraph.
[19]
In the result, I find that the insured driver was the sole cause of
the sudden emergency situation
which confronted the plaintiff
resulting in him eventually losing control of his vehicle and
overturned.
[10]
Consequently, I find that the defendant is 100 percent liable to
proven or agreed upon damages for
the plaintiff. Next paragraph.
[20]
The injuries of the plaintiff which I have referred earlier were not
disputed. The parties have
agreed that for loss of future earnings an
amount of R573 014.30 should be awarded. The court was called upon to
R300 000.00 for
general damages would be fair and reasonable.
On the other hand,
counsel for the plaintiff contends that an amount of
20
R450 000.00 to R500 000.00 will be fair and reasonable having regard
for the period the plaintiff
spent 8 days in hospital. He was, he
spent 5 days in one hospital whereafter that would be the Williams
Hospital wherefrom he was
discharged and to recuperated at Mediclinic
for 3 days. Next paragraphThe award of general damages is a solatium.
There is no mathematical
method to calculate the exact amount to be
awarded but this is a matter falling within the discretion of the
Court which will have
regard to that extent and the severity of the
injuries and try to balance the interest of both parties.
The Court is not
necessarily bound by previous Court awards because each and every
case is unique on its own and different from
the other. Previous
awards are mere guidelines but not cast in stone. In the
10
matter of Sanlam[?] quoted by ... [inaudible] CJ in the matter of S v
Road
Accident Fund (47763/2014) [2019ZAGPPHC109] (13 March 2019) in
this division at paragraph 10 of the judgment she had this to say
with regard to general damages the Court is
Sanlam [?] v Wilson
Suppliers LCD 1941 (AD) Act 199
the Court stated that:
“
The amount to be
awarded as compensation can only be determined by the broadest
general consideration and the figure arrived at
must necessarily be
uncertain depending on the judge’s view of what is fair in all
the
20
circumstances of the case”
I do not intend to deal
with the issue of general damages in supplemented fashion depending
on the specific heads of injuries sustained.
I do bear the extent of
the injuries in the excise of my discretion I am of the view that an
amount of R450 000.00 will be fair
and reasonable as general
Damages. In the result it
is ordered that 1. The defendant pays plaintiff an amount of R1 023
014.30 within 14 days of this order.
2. that the defendant
provides the plaintiff with an undertaking certificate in terms of
section 17(4)(a) of Act 56 of 1996 to pay
the loss of the future
accommodation of the plaintiff in the hospital or nursing home or
treatment or rendering of a service or
supplying of goods to his
other arising from injuries sustained by him in the collision which
10
occurred on 16 November 2011 or of other costs that have been
incurred. Next paragraph.
The defendant shall pay
the plaintiff taxed or agreed party and party costs in the High Court
scale to date subjected thereto that
such costs shall include the
costs, of the plaintiff’s counsel, the costs and reservation
costs where applicable of the plaintiff’s
experts and the
actuary, the reasonable costs incurred by and on behalf of the
plaintiff and as well as the costs consequent to
the attorneys, the
medical examination of both parties if applicable.
20
--------------------------------------------------
MAVUNDLA.
J
JUDGE
OF THE HIGH COURT
DATE:
2021/06/10