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[2019] ZAGPPHC 109
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S.S.F v Road Accident Fund (47763/2014) [2019] ZAGPPHC 109 (13 March 2019)
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REPUBLIC OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED
Case No;
·
47763/2014
13/3/2019
In the matter between
S
S F
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MNGQIBISA-THUSI
J
[1]
Plaintiff, Mr S S F, is seeking damages against tile Road Accident
Fund (“the
defendant”) for injuries sustained in a motor
vehicle accident which occurred on the Malekuta Road. Kabokweni At
the time
of the accident the plaintiff was a passenger at the back of
a bakkie.
[2]
The defendant has conceded merits 100% In favour of the plaintiff and
the parties
have reached settlement on the issue of loss of income.
The defendant has agreed to furnish the plaintiff with an undertaking
in
terms of section 17(4) (a) of the Road Accident Fund Act
[1]
,
for future medical and hospital expenses.
[3]
The only issue to be decided Is the quantum for general damages.
[4]
There is agreement that the plaintiff sustained the following
injuries.
4.1
an open fracture of the right forearm (radius and ulna):
4.2 an
interphalangal joint dislocation of the right thumb:
4.3
fractures of thoracic vertebrae (T8 and
T9);
4.4
injury to the right clavicle;
4.5
blunt chest trauma; and
4.5
fracture to the left scaphoid.
[5]
There is no dispute that, as concluded by the medical experts
(orthopaedic surgeons)
that the plaintiff has suffered a serious
injury under the narrative test.
[6]
The parties have agreed that the only evidence to be led will be that
of the plaintiff
with regard to him taking his ARVs after he was
diagnosed as being HIV positive. There is agreement that reference
will be made
to the Joint minutes of the occupational therapists
[2]
,
orthopaedic surgeons
[3]
and Industrial
psychologists
[4]
.
[7]
The plaintiff testified that he only became aware of his HIV status
in November 2017
It appears that despite the diagnosis and being
advised by Dr L Hartley, the medical examiner, to start taking
ARVs.
The plaintiff did not. In his evidence the plaintiff testified
that he commenced with anti-retroviral treatment from 22 November
2017 and continues to do so.
[8]
It is not in dispute that due to the orthopaedic injuries the
plaintiff sustained,
he suffers from the following.
8.1
he
has a painful right hand and wrist aggravated by certain activities
For instance he is no longer able to use his previously dominant
right hand and as a result has been unable to return to his previous
Job as a bricklayer for which he qualifies
8.2
he
suffers from mid to lower backache when walking long distances,
performing strenuous activities
or
bending,
8
.
3
he feels depressed and has disturbed sleeping patterns due to
backache.
8.4
he
has several scars on his right hand (forearm and wrist) and forehead;
and
8.5
suffers
from mild hearing loss.
[9]
It Is further common cause that the plaintiff is or, anti-retroviral
treatment and
the prognosis that his life expectancy would be 70% of
that of a person who ls HIV negative no longer applies
[10] With
regard to general damages the court in
Sandler
v Wholesale Suppliers Ltd
[5]
the court stated that
“
The amount to be awarded as
compensation can only be determined by the broadest general
considerations and the figure arrived at
must necessarily be
uncertain. depending on the Judge's view of what is fair in all the
circumstances of the case.”
[11] On
behalf of the plaintiff I was referred to three cases,
Blyth
v Van den Heever
[6]
,
Mohlaba v Road Accident Fund
[7]
,
to which counsel
for the defendant also made reference to; and
TJ
Tobi v Road Accident Fund
[8]
.
Counsel for the
defendant, besides the Mohlaba matter also referred me to four other
cases,
Thwala v
Road Accident Fund
[9]
·
Mlalandie v Road Accident Fund
[10]
;
Vukubi v Road Accident Fund
[11]
.
Dayimane v Minister of Correctional Services
[12]
I intend dealing only with
the cases referred to which are comparable to the current matter. The
matters referred to by counsel
for the defendant Involved more severe
injuries and
sequelae
than is the case
in the present matter and the awards ranged in today's values between
R387, 000.00 and R590. 000.00.
[12] In
Blyth v Van den
Heever
[13]
the plaintiff sustained
fractures of the radius and ulna of the right forearm which was
followed by sepsis after he was operated
upon. As a result of the
Injuries sustained the plaintiff finds it difficult to dress or bathe
himself. There is also a possibility
that he may undergo an operation
to amputate his right arm and to be fitted with a prosthesis Further,
the plaintiff was no longer
able to participate in sports and
suffered severe pain. The court awarded an amount of R 776,000 00
(2018 value).
[13] In
Mohlaba v
Road
Accident Fund
[14]
the plaintiff, who was 22
years old at the time of the accident. sustained a fracture of the
right proximal radius and ulna. As
a result a bony ankylosis formed
between the proximal radius and ulna Further, the plaintiff has no
pro- and supination of his
forearm which remains in a fixed position
20 degrees pronation. As a result of losing the full use of his right
forearm he was
no longer able to work as a motor mechanic and to
partake in fishing. The plaintiff was awarded an amount of 632 000.00
(2018 value)
as general damages.
[14] After
being referred to several comparable cases which have been
considered, plaintiffs'
counsel suggested that a sum in the amount of
R850. 000.00 would be an appropriate award for general damages. On
behalf of the
defendant counsel suggested an amount of R550, 00000.
However. no two cases are similar and each case must be treated on
its own
merits.
[15]
In
Protea
Assurance Company Limited v Lamb
[15]
the court held that
“…the trial court or !he court of
appeal, as !he case may be may pay regard to comparable cases It
should be emphasised.
however that this process of comparison does
not take the form of a meticulous examination of awards made 1n other
cases in order
to fix the amount of compensation nor should !he
process be allowed so to dominate the inquiry as to become a fetter
upon the court’s
general discretion m such matters. Comparable
cases. when available, should rather be used to afford same guidance.
in general
way towards assisting the court in arriving at an award
which is not substantially out of general accord With previous awards
in
broadly similar cases. regard being had to all the factors which
are considered to be relevant in the assessment of general damages.
At the same time, it may be permissible. in an appropriate case. to
test any assessment arrived at upon this basis by reference
to the
general pattern of previous awards in cases where the injuries and
their
sequelae
may have been either more serious or less than
those in the case under consideration
[16]
Having
considered the authorities I was referred to by Counsel, I am of the
view that the cases of
Blyth
and
Mohlaba
(supra)
are comparable although in the
Blyth
matter the
sequelae
are more serious as there is a
possibility that the plaintiff' s arm might be amputated.
[17] It is
common cause that at the time of the accident the plaintiff was 29
years old and working as a
bricklayer There is no dispute that as a
result of the injuries the plaintiff sustained he has suffered some
loss of amenities
Hels no longer m a position to work as a bricklayer
and to do sports. He further suffers from pain and is depressed,
suffers from
mild hearing loss and has severe scarring on his arm.
[18]
I
am of the view, taking into account the expert reports submitted and
the changes in the plaintiffs lifestyle and the loss of the
use of
his right forearm, that general damages in the amount of R 650,000.00
would be fair and reasonable under the circumstances.
[19]
In the result, the following order is made.
1.
Defendant to pay the plaintiff the amount of R650, 000.005 as general
damages.
2
Defendant is ordered to provide the
plaintiff with-a written undertaking in terms of
section 17(4)
(a) of
the
Road Accident Fund Act, 6 of 1996
.
3
Defendant is ordered to pay the
plaintiffs taxed or agreed party and party costs which costs shall.
Inter alia.
include
the costs consequent upon the obtaining of all the medico-legal
reports of the plaintiffs experts. namely:
3 1
Dr T Bingle (neurosurgeon)
3.2
Ms F Du Toit (occupational therapist)
3.3
Dr L Berkowitz (plastic and
reconstructive surgeon)
3.4
Mr PC Diedericks (industrial
psychologist)
3.5
Dr L Hartley (medical examine)r
3.6
Dr SL Biddulph (orthopaedic surgeon)
3.7
Dr VM Close (orthopaedic surgeon)
3.8
Dr M Vorster (forensic psychiatrist)
3.9
Dr M Rudolph (ear nose and throat
specialist)
3.10 Mr L Lemmer
(audiologist)
3 11 GRS
Consulting (actuary)
NP
MNGQIBISA-THUSI
Judge of the High Court
Appearances:
For
Plaintiff- Adv S Maritz (instructed by Schurte De Jong Inc)
For
Defendant Adv RB Mphela (instructed by Dlale Mogashoa Attorneys)
[1]
Act 56 of 1996 .
[2]
Mrs F du Toit and Mrs T Thembo
[3]
R J Sibanyoni and Dr VM Close.
[4]
Mr PC Diedericks and Ms M Mathabela.
[5]
1941 AD 194
at
199.
[6]
1979(3D4) QOD 38 (A)
[7]
(12010/2014) [2016] ZAGPPHC 12 (21 January 2016)
[8]
Unreported Judgment under case no 868/2010, Eastern Cape Grahamstown
(9 September 2013)
[9]
2011(6D4) QOD 1 (GNP)
[10]
2011 (6J2) QOD
90
(ECP
[11]
2007 (5J2) COD 188 (E)
[12]
2012(6E4) QOD 15 (ECD).
[13]
1979(3D4) QOD 38
(A)
[14]
(12010/2014) [2016] ZAGPPHC 12 (21 January 2016)
[15]
1977 (1) SA 530
(AD) ai 535 H-5368