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[2019] ZAGPPHC 15
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Prusent v Road Accident Fund (3033/2017) [2019] ZAGPPHC 15 (5 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED No
DATE:
5 February 2019……..………………………
SIGNATURE:
.…………………………………………………
Case No. 3033/2017
In the matter between:
THEMBALETHU LUCAS
PRUSENT PLAINTIFF
And
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
MILLAR, A J
1.
The
plaintiff was injured in a motor collision on 1 April 2010. A claim
was submitted to the defendant which is the statutory body
established to deal with such claims.
2.
The
plaintiff and the defendant were able to resolve all issues between
themselves save the quantum of the loss of income, past
medical
expense and general damages suffered as a result of the injuries
sustained in the collision and their sequelae.
3.
The
parties briefed various medico-legal experts and those experts met
and produced minutes. It was agreed between the parties that
the
issues for determination would be argued on the papers and that no
viva
voce
evidence would be led. It was also agreed that the plaintiff
had indeed suffered a loss as a result of his injuries and an
actuarial report, which contained calculations reflecting the figures
with illustrative contingencies, contended for by the industrial
psychologists briefed by the respective parties was to form the basis
for an award.
4.
The
claim for past medical expenses was in the sum of R28 254,87. These
expenses were for treatment of injuries that were clearly
collision
related and corresponded with vouchers that the plaintiff had
furnished to the defendant. The defendant, correctly in
my view,
conceded that the plaintiff was entitled to these.
5.
In
regard to the claim for loss of earnings, the experts and the parties
were agreed as to the plaintiff’s pre-injury likely
career path
and ceiling and his post-injury path. The only difference between
them was the calculation of the post-injury contingency
to be
deducted.
6.
The
plaintiff initially argued for a contingency deduction of 5% for past
loss of earnings, both pre and post-injury and 15% and
45% for the
future loss of earnings respectively. This was the basis upon which
the initial calculations had been obtained and
resulted in the
calculation of the loss of income, with the application of what was
called a contingency spread of 30% in the sum
of R2 221 555,00.
7.
During
argument the plaintiff’s counsel indicated that having
discussed the matter at length with his opponent before the
matter
was called, he was of the view that a more appropriate basis would be
if the post-injury contingency were reduced to 30%
resulting in a
contingency spread of 15%. This was in consequence of consideration
of the opinions of the experts and the plaintiff’s
particular
post-injury employment circumstances. The consequence of this was
that on a recalculation the quantum of the loss of
earnings was
reduced to R 1 371 883,80. The defendant made no submissions on this
aspect save to record that he agreed with the
15% contingency spread
as being appropriate in the present matter.
8.
In
regard to the claim for general damages, neither counsel was able to
refer me to previous cases in which awards for similar injuries
were
made. The plaintiff suffered
inter
alia
an
injury to his eye which necessitated multiple surgeries which
notwithstanding have left him with limited vision. He suffered
a
fractured femur which also necessitated surgeries and in respect of
which he may in due course require further surgery to remove
a fixing
plate and screws.
9.
I
was referred to Mpondo v Road Accident Fund
[1]
,
Phasha v Road Accident Fund
[2]
,
Mills v Road Accident Fund
[3]
and Mashigo v Road Accident Fund
[4]
.
It is trite that each case must be decided on its own facts. The
plaintiff argued that an amount of general damages in the sum
of R600
000,00 should be awarded. The defendant associated itself with this
argument and in the circumstances of the matter I am
also in
agreement that an award in this sum for this head of damages is
appropriate.
10.
Accordingly,
I intend to award to the plaintiff:
10.1
R28
254,87 for past medical expenses;
10.2
R1
371 883,80 for loss of income, both past and future; and
10.3
R600
000,00 for general damages.
11.
The
total award having regard to paragraph 10 above is in the sum of R2
000 138,67.
12.
In
the circumstances I made the draft marked “X” with the
amendment to paragraph 1.1 by the insertion of the figure
R2 000
138,67 an order of court.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
5 FEBRUARY 2019
JUDGMENT
DELIVERED ON:
5 FEBRUARY 2019
COUNSEL
FOR THE PLAINTIFF:
ADV C JORDAAN
INSTRUCTED
BY:
JOHAN VAN DER VYVER ATTORNEYS
REFERENCE:
MS
R GOUWS
COUNSEL
FOR THE DEFENDANT:
MR I STRYDOM
INSTRUCTED
BY:
NINGIZA HORNER INCORPORATED
REFERENCE:
MS
T GAOKGWATHE
[1]
2010
(6F2-4) QOD (EC)
[2]
2012
(6E4-21) QOD (GP)
[3]
2010
(6F2-1) QOD (KZN)
[4]
[2018]
ZAGPPHC 539 (13 June 2018)