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[2019] ZAGPPHC 369
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Van der Walt v Road Accident Fund (1885/17) [2019] ZAGPPHC 369 (5 August 2019)
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personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
CASE
NO: 1885/17
5/8/2019
In
the matter between:
HUGO
VAN DER
WALT
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
COLLIS
J:
INTRODUCTION
1.
The
Plaintiff, an adult male has instituted a damages action against the
defendant for certain bodily injuries he sustained in a
motor vehicle
collision on15 April 2016. At the time of the collision, the
plaintiff was travelling with a motor cycle bearing
registration
letters and numbers [….] The collision occurred when a truck
bearing no registration letters and numbers, suddenly
and without
warning executed a right turn immediately in front of the plaintiff.
2.
In
the particulars of claim at paragraphs 5 and 6 thereof, the Plaintiff
alleges the following:
5
2.1
"He/ She failed to keep a proper
lookout;
2.2
He/ She failed to exercise proper or
effective control over the vehicles that he/she were driving;
2.3
He/ She failed to exercised due
consideration to other road users;
2.4
He/ She failed to avoid the collision,
when by the exercise of reasonable care, he/she could and should have
done so; and
2.5
The insured driver failed to stop and
wait for the Plaintiff to pass before turning into a side street. The
plaintiff tried to avoid
a collision with the insured driver by
swerving to his left side and a collision occurred between the
Plaintiff and a stationary
vehicle, causing the collision."
3.
As per paragraph 6 the following
allegations are made:
6
"As a result of the aforesaid collision,
the Plaintiff suffered the following serious injuries as contemplated
by Section 17
(1) of the Act:
3.1
Open tib /fib fracture;
3.2
Fractured right patella;
3.3
Fracture ribs;
3.4
Fracture right hand;
3.5
Injury to neck."
4.
As per paragraph 7 of the particulars of
claim, the following allegations are made:
7
4.1
'The Plaintiff underwent medical
treatment;
4.2
The Plaintiff will undergo medical
treatment in the future;
4.3
The Plaintiff has and will continue to
suffer a loss on income in the future.'
5.
At
the commencement of the proceedings and at the behest of the parties,
the court was requested to record the following:
5.1
That
the issue of merits as well as that of the quantum remains in
dispute;
5.2
That
the Plaintiff's claim in respect of past hospital and medical
expenses in terms of Rule 33(4) is to be determined at a later
stage
and the court was called upon to order such separation;
5.3
That
the Defendant would provide the Plaintiff with an undertaking in
terms of section 17(4)(a) of the Act, in settlement of the
Plaintiff's claim in respect of her future medical expenses;
5.4
By
agreement between the parties the contents and correctness of the
medical legal reports prepared by the experts, were handed
in and
marked as exhibits A to E (in respect of the Plaintiff) and exhibits
K to L (in respect of the Defendant) ;
5.5
Furthermore,
the joint minutes prepared by the various experts were marked as
exhibits F, G and H respectively.
5.6
The
parties were also in agreement that in respect of General Damages
that the joint minutes filed of record will serve as evidence
before
this Court.
6.
The
Plaintiff elected to testify and the parties were further in
agreement that they will merely argue the matter on the pleadings
and
the various expert reports filed of record without the need call such
experts.
DISPUTED
ISSUES
7.
This
court was called upon to determine the extent of the Plaintiffs past
and future loss of earning/earning capacity and the appropriate
percentage contingency deductions to be applied. The court was also
called upon to determine the appropriate amount in general
damages to
be awarded to the Plaintiff.
EVIDENCE-ON
MERITS
8.
Mr Van Der Walt testified that on the 15
April 2016, he was travelling on his motor cycle on Codonia Avenue in
a southerly direction.
He described Codonia Avenue as a dual carriage
way with one lane travelling in opposite directions. As he proceeded
along Codonia
Avenue he then noticed a bakkie travelling ahead of him
to the direction of Nico Smit Street and a truck stationary at a
yield
sign, waiting to execute a right turn across his path of
travel. The intersection is not controlled by any traffic signs.
Immediately
upon him arriving adjacent to the truck, the truck then
executed a right turn across his path of travel. He then swerved to
the
left in order to avoid the truck. He managed to avoid the truck,
went in front of its nose and then came back onto the road. As
he
wanted to stop his motor cycle next to the adjacent veld his handle
bar then struck the bakkie which at that point was stationary
at the
intersection with Nico Street. In the process his legs got caught.
His motor cycle capsized and he lost consciousness. Eventually
an
ambulance was summonsed. The plaintiff testified that he had been
driving a motor cycle since age 17 and thus for the past 41
years.
This then concluded the testimony of the witness in chief and he was
not subjected to any cross-examination.
9.
On the merits the defendant presented no
evidence in rebuttal by the insured driver. As such the evidence of
the plaintiff remains
uncontroverted.
10.
The
conduct of an insured driver (executing a right turn) should be judge
against the following principles confirmed by Msimeki
J in the matter
of Jacobs v Road Accident Fun
[1]
1:
10.1
To turn across the path of oncoming or
following traffic is an inherently dangerous manoeuvre and that a
driver who intends executing
such a manoeuvre bears a stringent duty
to do so after satisfying himself that it is indeed safe to do so.
[2]
10.2
A driver turning to the right must
signal his intention clearly and avoid turning until an opportune
moment presents itself (See
Welf v Christner 1977
(2)
SA
170
(N).
10.3
He must only turn right once he has
satisfied himself that there is room enough between his vehicle and
the approaching vehicles
to allow him to complete the manoeuvre
safely. (See
R v
Court
TPD 133 at 134).
10.4
A driver is entitled to assume that
those who are traveling in the opposite direction will continue in
their course and that they
will not suddenly and inopportunely turn
across the line of traffic. This assumption may continue until it is
shown that there
is a clear intention to the contrary. (See Van
Staden v Stocks
1936 AD 18).
11.
On assessing the plaintiff as a witness;
the plaintiff made a favourable impression on the court. His evidence
I found to be reliable
and credible. Upon observing the plaintiff he
was able to tender his evidence in a coherent and logic manner. Mr
Van Der Walt testified
that the insured driver suddenly turned across
his path of travel at the point where he was travelling along on
Codonia Avenue
and thus at an inopportune moment.
12.
The author W.E Cooper in his textbook
Delictual Liability in Motor Law Volume 4 at page 134 defines a
driver's duty to keep a proper
look-out as follows:
It entails
"a
continuous scanning of the road
ahead, from side to side, for obstructions or potential
obstructions."
13.
On a proper conspectus of the evidence
and in the absence of any rebuttal evidence, I find that the
collision occurred solely by
reason of the negligence of the insured
driver, in one or more respects referred to in the particulars of
claim.
14.
On the liability thus the defendant is
held liable to compensate the plaintiff 100% of such damages as the
plaintiff is able to
prove as a result of the collision which
occurred on 15 April 2016.
EVIDENCE-ON QUANTUM
15.
As to the injuries sustained by the
plaintiff, the facts before this court is undisputed. Thus it is not
disputed that the plaintiff
sustained a right compound tibia and
fibula fracture.
16.
As mentioned, no expert witnesses
testified on behalf of the plaintiff. The plaintiff handed into the
record its various expert
reports. The reports were handed in by
agreement with the defendant and the defendant confirmed the contents
of the reports which
were marked as Exhibits A, 8, C, D and E
respectively. In addition thereto, the parties also by agreement
handed into the record,
the joint minute prepared by the Orthopaedic
surgeons as Exhibit F, the joint minute prepared by the Industrial
Psychologist as
Exhibit G and the joint minute prepared by the
Occupational Therapist as Exhibit H.
PRINCIPLES
TO APPLY WHEN EVALUATING A CLAIM FOR GENERAL DAMAGES
17.
In cases in which the question of
general damages comprising of pain and suffering, disfigurement,
permanent disability and loss
of amenities of life arises a trial
Court in considering all the facts and circumstances of a case has a
wide discretion to award
what it considers to be fair and
adequate.
[3]
18.
Due to the difficulty in calculating an
amount to be awarded for non-patrimonial damages, considerations of
fairness and reasonableness
always plays determining rolls in the
assessment of such damages. Whilst fairness and reasonableness mean
that the claimant must
be sufficiently and properly compensated for
the injury he has suffered, it also means that inordinately high
awards should not
unnecessary burden the defendant.
EXPERT
EVIDENCE
19.
On behalf of the plaintiff Mr. Corne
Heymans testified to the actuarial report prepared by his firm. In
compiling his report and
calculations he had regard to the joint
minutes prepared by the Industrial Psychologist, marked as Exhibit G
pages 6-9. As per
his report he testified that when it was prepared
the plaintiff was 57 years old to his nearest birthday and that he
had a normal
life expectancy. I will return to the remainder of his
findings later in the judgment.
20.
In their joint minute, the
Orthopaedic
Surgeons
recorded as follows:
[4]
20.1
The experts were in agreement that the
plaintiff sustained a right compound tibia and a fibula fracture in
the collision which occurred
on 15 April 2016.
20.2
As a result of the injuries sustained,
an intra-medullary nail was used for fixation of the right tibia and
a right wrist trapezium
excision for carpometacarpal joint trapezium
fracture.
20.3
Upon clinical examination both Dr Mennen
and Dr Mafeelane had found that Mr Van Der Walt had scarring on his
right lower leg, his
ankle and his right thumb and he presents with
limited movement on his right ankle and right knee. The experts also
found that
the plaintiff presents with instability of his cruciate
ligaments of the right knee and atrophy of the right lower leg was
noted.
20.4
The orthopaedic surgeons were in
agreement that as a result of the accident, that the plaintiff is
still experiencing chronic pain
related to his right thumb and in
particular his right lower leg. The plaintiff has also been left
with, a non union of his right
tibia.
20.5
The experts were also in agreement that
Mr. Van Der Walt following the collision has been left unemployed and
as such that he has
suffered a significant and devastating loss of
work capacity and that he may very well require a right below knee
amputation.
21.
The
Industrial
Psychologists,
Ms Van Zyl and Ms
Loubser in their joint minute made the following observations:
[5]
21.1
The experts were in agreement that
pre-morbid Mr Van Der Walt was functioning as a tool maker for
Transnet: Rail Engineering and
for the period January 2016 to April
2016, his total package were R 417 598.89 per annum.
21.2
They were further of the opinion that
pre-accident that the plaintiff had reached his career ceiling and
would have remained functioning
as a Toolmaker without any further
promotions. The experts were further in agreement that pre-morbid
there were no factors known
to them to suggest that the plaintiff
suffered from a compromised work capacity. In this regard if one
considers the collateral
information obtained from Mr Lekhele, his
previous foreman, he reported that the plaintiff's work performance
was very good.
[6]
In this regard Mr. Van Zyl rated the plaintiff's pre-morbid
assessment of employability profile also as good.
[7]
21.3
The Industrial Psychologists, were
further in agreement that it is unlikely that the plaintiff will
return to his pre-accident employment
or any other alternative
employment. The experts were also in agreement that the plaintiff
will remain to receive his disability
benefit until his normal
retirement age of 63 years.
21.4
Mr. Van Zyl in his report had further
recommended that the plaintiff should be duly compensated for the
pain and suffering which
he had endured They further both agreed that
post accident that the plaintiff displayed difficulty across several
domains on the
neuropsychological tests conducted. In this regard
each expert performed individual tests on the plaintiff.
22.
The
Occupational
Therapists
joint minute recorded the
following:
[8]
The experts both had regard to the reports prepared by the
orthopaedic surgeons when they examined the plaintiff. The experts
were in agreement that as a result of the injuries that the plaintiff
sustained, that he has suffered a loss of amenity and enjoyment
and
that the plaintiff as result is unable to resume his occupation. They
further agreed that as a result of the accident that
the plaintiff
has presented with impaired functioning regarding his dynamic lower
limb mobility. As a result he has been left with
poor prognosis and
should he remain with ongoing symptomology and should he need to
undergo an amputation of the R lower extremity,
he would then only be
regarded as suited for work tasks of a sedentary to light nature. The
experts further agreed that should
the employer not be able to
accommodate the plaintiff in a light duty position, he will be placed
on permanent disability.
EVALUATION
23.
Now in determining the plaintiff's
future loss of earning and or earning capacity this court has to
determine whether post-accident
and as a result of the
sequelae
of the collision, he would have been
able to reach his full career potential. Mr Van der Walt is at
present 57 years of age and
would have retired at age 63 years. Due
to the accident however he has been left disabled and post-accident
has been receiving
a disability grant and would receive same for the
remainder of his working life.
24.
In Bridgman NO v Road Accident Fund
2002
(1) ALLSA 1
(CPD) the court held that "in order to claim
compensation for patrimonial loss a Plaintiff must discharge the onus
of proving
on a balance of probabilities that such loss has indeed
occurred. That does not necessarily mean that the Plaintiff is
required
to prove the loss with mathematical precision however the
Plaintiff is required to place before the court all evidence
reasonably
available to enable the court to qualify the damages and
to make an appropriate award in his favour."
25.
In this regard both the plaintiff's
counsel and counsel for the defendant had both referred this court to
authorities in their respective
Heads of Argument. This Court in
deciding the appropriate award for general damages to be awarded
remains mindful that any previous
award made in comparable cases
serve but only as a guide when considering what award should be made.
26.
In the decision
De
Jong v Du Pisanie
2005 (5) SA 434
(SCA) the SCA
held,
that among others that the tendency towards higher wards for general
damages in the more recent past can hardly be justified.
At paragraph
60 where after noting that the tendency towards increased awards in
respect of general damages in recent times was
readily perceptible,
the court reaffirmed conservatism as one of the multiple factors tobe
taken into account in awarding general
damages. The court concluded
that the principle remained that the award should be fair to both
sides-it must be just compensation
to the plaintiff, but "not
pour out largesse from the horn of plenty at the defendant's
expense." Here the Court awarded
R 250 000 which today is worth
R 622 000.
27.
In considering an appropriate award to
be made in respect of general damages, this court has considered the
award previously made
in the decision Rademeyer v Randalia Assurance
Corporation of South Africa Ltd 1968 2 QOD 46 (E}. During 1968 the
court awarded
R 1O 000 which today in terms of the Quantum Yearbook
2019 by the author Robert Koch is worth R 800 000.
28.
In the decision South Insurance
Association v Bailey
1984 (1} SA 98
AD it was held that a court is
not bound by actuarial calculations of the parties. Furthermore, that
a Court has a discretion to
discount contingencies to cater for the
uncertainties of life such as periods of unemployment, incapacity due
to illness or adverse
economic conditions.
29.
The actuary for the plaintiff testified
that the plaintiff pre-accident would have retired at 63 years of
age, but that following
the collision the plaintiff never returned to
work and he was placed on permanent disability. As such he based his
calculations
on the plaintiff's future loss of income, on the
plaintiff's annual disability income and made provision for annual
increases in
line with consumer price index until the age of 63
years. In relation to the plaintiffs past pre-morbid income, he
applied a 5%
contingency reduction which translates into a figure of
R 218 592. Similarly, in relation to the plaintiffs future pre-morbid
income
a 5 % contingency reduction was applied resulting in a figure
of R 493 911. The expert further testified that the assumptions
applied
by the defendant's expert, is the assumptions applied by
them.
30.
The actuarial report prepared by the
defendant's expert, GW Jacobson Consulting Actuaries was also handed
into the record. They
premised their report on the same retirement
age and annual income received prior to the accident but applied a 10
% contingency
on the future loss of income of the plaintiff.
31.
The contingency percentages applied by
the plaintiff's expert, this Court finds fair and reasonable under
the circumstances and
I am satisfied that the plaintiff has
discharged his
onus
of
presenting reliable evidence in proving his loss of earning capacity.
32.
Having regard further to the decision
Goodall v President Insurance
1978 (1) SA 389
(V\/) and the sliding
scale method laid down in this decision I am of the opinion that the
percentages contingency deductions as
alluded to by the plaintiffs
actuary would be both fair and equitable and will serve to balance
the interest of both parties under
the circumstances.
ORDER
33.
In the result, the following order is
made:
33.1
The Defendant is liable for 100% per
cent of the plaintiffs proven damages.
33.2
The Defendant shall pay the Plaintiff
the total amount of R 1 512 504 (One Million Five Hundred and Twelve
Thousand Five Hundred
and Four Rand) in respect of General Damages,
past and future loss of income/earning capacity.
33.3
In the event of the aforesaid amount not
being paid timeously, the Defendant shall be liable for interest on
the amount at the rate
of 10.25% per annum, calculated from the 15th
calendar day after the date of this order to date of payment.
33.4
The Defendant shall furnish the
Plaintiff with an undertaking in terms of
Section 17(4)
(a) of the
Road Accident Fund Act 56 of 1996
for payment of the future
accommodation of the Plaintiff in a hospital or nursing home or
treatment of and or rendering of a service
or supplying of goods to
him arising from injuries sustained by him in a collision which
occurred on 15 April 2016, to compensate
the Plaintiff in respect of
the said costs after the costs have been incurred and upon proof
thereof.
33.5
The Defendant shall pay the Plaintiff's
taxed or agreed party and party costs on the High Court scale,
subject thereto, that:
33.5.1
In the event that the costs are not
agreed:
33.5.1.1
The Plaintiff shall serve a notice of
taxation on the Defendant's attorney of record;
33.5.1.2
The Plaintiff shall allow the Defendant
14 (FOURTEEN) Court days from date of allocatur to make payment of
the taxed costs;
33.5.1.3
Should payment not be effected
timeously, the Plaintiff will be entitled to recover interest at the
rate of 10.25% per annum on
the taxed or agreed costs from date of
allocatur to date of final payment;
33.5.2
Such costs shall include but not be
limited to:
33.5.2.1
The costs incurred in obtaining payment
of the amounts mentioned in paragraph 20.2 and 20.6 above;
33.5.2.2
The costs of and consequent to the
employment of counsel including counsels charges in respect of her
day fee for 18 MARCH 2019
as well as reasonable preparation;
33.5.2.3
The costs of all medico-legal,
radiological, actuarial, accident reconstruction, pathologists, joint
minutes and addendum reports
obtained by the Plaintiff, as well as
such reports furnished to the Defendant and/or its attorneys, as well
as all reports in their
possession and all reports contained in the
Plaintiff's bundles, including, but not limited to the following:
33.5.2.3.1
Dr. E. Mennen-Orthopeadic Surgeon;
33.5.2.3.2
Uwe Wiele-Orthotist;
33.5.2.3.3
Dr Annalie Pauw-Clinical Psychologist;
33.5.2.3.4
Anneke Greeff- Occupation Therapist;
33.5.2.3.5
JJ Prinsloo & Associates-Industrial
Psychologist;
33.5.2.3.6
Argen Acturial Solutions-Actuary (in
attendance at Court)
33.5.2.3.7
Kempton Group-Accident Reconstructive
Investigations (in attendance at Court).
33.6
The reasonable and taxable preparation,
qualification and reservation fees, if any, in such amount as allowed
by the Taxing Master,
of the following experts:
33.6.1
Dr. E. Mennen-Orthopeadic surgeon;
33.6.2
Uwe Wiele-Orthotist;
33.6.3
Dr. Annalie Pauw-Clinical Psychologist;
33.6.4
Anneke Greeff-Occupational Therapist;
33.6.5
JJ Prinsloo & Associates- Industrial
Psychologist;
33.6.6
Argen Actuarial Solutions-Actuary
(present at court);
33.6.7
Kempston Group-Accident Reconstructive
Investigations (present at court).
33.7
The
reasonable costs and time spent travelling incurred by and on behalf
of the Plaintiff in, as well as costs consequent to attending
the
medico legal examinations of both parties.
33.8
The
costs consequent to the Plaintiff's trial bundles and witness bundle;
33.9
The
costs of holding al pre-trial conferences between the legal
representatives for both the Plaintiff and the Defendant, in
including
counsel's charges in respect thereof;
33.10
The
cost of and consequent to compiling all minutes in respect of pre
trial conferences;
33.11
The reasonable travelling costs and time
spent travelling of the Plaintiff, who is hereby declared a necessary
witness;
33.12
The reasonable costs for the interpreter
Ms J. Sithole (in attendance at court}.
33.13
The amounts referred to above will be
aid to the Plaintiff's attorneys, Spruyt Incorporated, by direct
transfer into their trust
account, details of which are the
following:
Standard Bank of South Africa
Account Number: [….]
Brach Code: 011 454
REF: SD 2586
33.14
There is no contingency fee agreement
between the Plaintiff and Spruyt Incorporated Attorneys.
33.15
In terms of Rule 33(4), the plaintiff's
claim for past hospital and medical expenses is postponed
sine
die.
COLLIS
J
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA
Appearances:
For
the Plaintiff
: Adv. S. Maritz
Attorney
for the Plaintiff
: Spruyt Inc.
For
the Defendant
: Adv. M. Rabaney
Attorney
for the Defendant
: Maponya Inc.
Dates
of Hearing
: 26 March 2019
Date
of Judgment
: 05 August 2019
[1]
(A402/2008)
[2011] ZAGPHC 121
(13 June 2011)
[2]
AA Mutual Insurance Association ltd v Noneka 1976 (3) SA 45 (AD)
[3]
Road Accident Fund vMarunga2003(5) SA 164 (SCA)
[4]
Bundle C Exhibit F p 1-5
[5]
Bundle C Exhibit G p 6-9
[6]
Exhibit E p 147 para 8.3
[7]
Exhibit E p 149
[8]
Exhibit C p 10-14