About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 432
|
|
Kaduku v Road Accident Fund (83408/2014) [2017] ZAGPPHC 432 (22 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
22/3/2017
CASE
NO: 83408/2014
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
KADUKU
PRINCE PLAINTIFF
vs
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
KUBUSHI
J
INTRODUCTION
[1]
The plaintiff is claiming damages from the Road Accident Fund for
bodily injuries sustained in a motor collision that occurred
on 18
November 2012.
[2]
The evidence of the plaintiff was led in support of his claim. The
defendant led no evidence.
[3]
No evidence was led in regard to quantum as well. The parties agreed
to argue on the basis of the quantum reports handed in
court by
the plaintiff. The quantum reports forming part of the
plaintiff's expert bundle are the following:
3.1
Medico-Legal Report by
the Orthopaedic
Surgeon
Dr S K Mafeelane;
3.2
Medico-Legal Report by neurosurgeon Dr T P Moja;
3.3
Neuropsychological Report by the
Clinical
Psychologist Dr M Katjene;
3.4
Medico-Legal Report by the Occupational Therapist Ms A Phasha;
3.5
Medico-Legal Report by the Plastic and Reconstructive Surgeon Dr
J P
M Pienaar; and
3.6
Psycho-Legal Report by the Industrial Psychologist Mr Siphiwe
Katjene.
MERITS
Plaintiff's
Evidence
[4]
According to the plaintiff he was a cyclist when he was knocked down
by a motor vehicle insured by the Road Accident Fund. Plaintiff
testified that he was moving towards a T-junction. Before he reached
the junction he went over a speed hump. At the T-junction,
even
though there was no stop sign for him, he stopped and looked to the
right and to the left. He saw a motor vehicle approaching
the
junction from his left side. He had the right of way because there
was no stop sign on his lane of travel and there was a stop
sign on
the left side for the motor vehicle. He also reached the T-junction
before the approaching motor vehicle. When he saw the
approaching
motor vehicle it was about 20 to 25 meters away from the stop
sign. He expected the motor vehicle to stop at
the stop sign. As a
result he cycled into the junction intending to cross over the road
to be on the correct side. Whilst he was
still negotiating the
junction taking a right turn into the main road he was hit by
the motor vehicle from behind. At the
time the motor vehicle hit him
he had already completed the right turn as he was about to go over
the yellow line at the left edge
of the road. He was about 10 meters
away from the stop sign when the motor vehicle knocked him. According
to him, from the looks
of things the motor vehicle did not stop
at the stop sign where it was supposed to and allow him to cross the
intersection. He
testified that there was nothing he could do to
avoid the accident. He claims that he lost consciousness at the time
of the collision.
He was transported to the hospital and regained
consciousness after five days. After being discharged he went back to
the scene.
He noticed break marks which started immediately after the
stop sign and stopped at the left edge of the road.
Plaintiff's
Argument
[5]
The submission by the plaintiff is that his claim should succeed by
100% because, firstly, the only evidence before court is
his
evidence. The defendant led no evidence to rebut
his evidence.
[6]
Secondly, since the defendant in his plea denied the accident it
cannot in its argument rely on the accident having occurred.
[7]
Lastly, the defendant should not be allowed apportionment of damages
because it did not plead it in its papers and also because
it denied
that the accident took place.
Defendant's
Argument
[8]
The contention by the defendant is that the liability should be
apportioned 30 /70 in favour of the plaintiff. The submission
in this
regard is that the defendant conceded in the pre-trial conference
held on 6 July 2015 that its version is as
per
the official
SAPS records, which means that it admitted that the accident
occurred. The defendant contended further that the defendant
had in
its defence pleaded apportionment of damages. Liability should be
apportioned because the accident occurred whilst the plaintiff
was
still crossing the road which means that the plaintiff chose an
inopportune time to cross the road. There is no evidence
that
proves that the motor vehicle did not stop at the stop sign because
it hit the plaintiff from behind. The plaintiff
could not have
seen that the motor vehicle did not stop.
Analysis
[9]
It is common cause that the plaintiff was knocked down by the insured
motor vehicle whilst negotiating a right turn at a T-junction.
It is
also not in dispute that the insured motor vehicle hit the plaintiff
from behind. What is in issue is whether the liability
should be
apportioned between the parties and if so at what degree.
[10]
The defendant's contention is that the liability should be
apportioned because the plaintiff was knocked down whilst still
crossing the intersection. I do not agree with this contention.
[11]
The only evidence, as the plaintiff submits, is that of the
plaintiff. The plaintiff testified that he had the right of way
because there was no stop sign in his lane of travel and that he
expected the motor vehicle to stop and allow him to cross the
road to
the correct side (that is the left side of the road) of his path of
travel. If the evidence of the plaintiff is accepted,
the insured
motor vehicle should not have knocked the plaintiff. Firstly, as
testified by the plaintiff he reached the junction
before the insured
motor vehicle. Secondly, the motor vehicle was supposed to have
stopped first before moving into the intersection.
From the look of
things if the plaintiff went first into the intersection and if the
motor vehicle had stopped at the stop sign
it would not have hit the
plaintiff. What is worse, the plaintiff was hit from behind. The
insured motor vehicle ought to have
seen the plaintiff and avoided
colliding with him. The plaintiff's testimony is that the accident
happened in the month of November
at around 19h00. In November at
around 19h00 it is not yet dark outside. If the driver of the insured
motor vehicle was keeping
a proper look out, he should have seen the
plaintiff and avoided hitting him. The further evidence by the
plaintiff is that there
was nothing he could do to avoid the
accident. He was hit from behind which means he did not see the
insured motor vehicle immediately
before it hit him. In the premises
the plaintiff's claim must succeed in full.
[12]
I find the evidence of the plaintiff to be satisfactory in all
material aspects. He was a good witness, spoke eloquently and
did not
contradict himself. I am, as such, satisfied that he has been able,
on a balance of probabilities, to establish his claim
against the
defendant.
QUANTUM
[13]
As regards quantum the plaintiff's claim is for two heads of damages,
namely, the loss of earnings and general damages. The
parties are
agreed that the plaintiff is entitled to an amount of R1 062 069, 50
for loss of earnings. What remains to be determined
is the amount for
general damages.
Injuries
Sustained
[14]
As a result of the collision the plaintiff suffered the following
injuries: a left tibia and fibula fracture and head injury
with a
laceration of the scalp. An open reduction and internal fixation with
tibial nails was done for the left tibia fracture.
He was treated
medically for the head injury and the scalp laceration was sutured.
He was kept in hospital for a month.
[15]
The neurosurgeon reports that the plaintiff
sustained blunt head trauma, evidenced by the
multiple scars on his scalp. He lost consciousness at the accident
scene. On arrival at the hospital, he was semiconscious with
a
Glasgow coma scale of 12/15 to 13/15. CT brain showed mild
brain oedema. He was treated medically for the head
injury. His Glasgow coma scale improved to 15/15 the following
day. Based on the available evidence, the plaintiff
is
said to have sustained a moderately severe diffuse brain
Injury.
[16]
The neurosurgeon is of the opinion that the plaintiff has made a good
recovery post the head injury, with no obvious
residual
neurocognitive problems and has no residual neurophysical
deficits.
Pain
and Suffering
[17]
It is recorded that before the collision the plaintiff was physically
fit and healthy. He had no chronic medical problems or
previous head
injuries or limb fracture. The neurosurgeon reports that post injury,
the plaintiff complains of recurrent left lower
leg pain, exacerbated
by prolonged standing, walking long distances, cold weather and
prolonged weight bearing and strenuous exercise.
He cannot run due to
his leg pain. He struggles to perform his tiling
work due to the pain.
[18]
The neurosurgeon confirms that the plaintiff suffered acute pain
from the left tibia structure and head injury
with
multiple scalp lacerations and an abrasion on the
forehead. He was managed conservatively for the head injury.
He had
an open reduction and internal fixation of the left tibia. He would
have experienced pain for several weeks from the healing
fracture.
[19]
According to the medico-legal report of the orthopaedic surgeon the
plaintiff suffered acute pain that was present for
almost 10
to 14 days as a result of the fracture as
well as surgery involved to stabilise the
fracture.
He was given analgesics to ease the pain. He continues
to suffer the inconvenience
and discomfort of chronic
pain from the injured areas. He has never been pain free since
the collision. He will
need to remove the tibial
nail in the future and will, as a result, suffer more
pain when the implants
are removed.
Loss
of Amenities of life
[20]
There is loss of amenities of life due to the chronic left knee and
leg pain. As a result of the injuries, the plaintiff has
difficulty
standing for a long time. He has difficulty walking long distances
and can no longer run. He can no longer do any prolonged
weight
bearing and strenuous exercise. Pre-injury he worked as a tiller and
he now struggles to perform his tiling work due to
the pain.
Disfigurement
[21]
The plaintiff has a 5cm scar on the right parietal region
of the head; a 6cm scar on the right
occipital
region of the head; multiple surgical scars
on the left leg (knee, lower leg and
ankle) and abrasion scar
on the left lumbar region. He also has a bony deformity
of the lower tibia.
Plaintiff's
Argument
[22]
The plaintiff's submission is that the report of the neurosurgeon
shows that the plaintiff suffered serious brain injury and
he should
be compensated for that. According to the plaintiff he lost
consciousness after the accident and remained oblivious of
his
surrounding for five days. This, the plaintiff argues, is confirmed
by the Glasgow coma reading of 12/15 to 13/15. Plaintiff
contends
further that when considering the amount to be awarded for general
damages the court must take into account that the plaintiff
might in
future have to remove the screws inserted in the tibia.
[23]
In support of his submission the plaintiff referred to the judgment
in
Dlamini v RAF
2015 (59188/2013) ZAGP 646 (3 September
2015) wherein the plaintiff who sustained a dislocated toe and brain
injury
was awarded an amount of Rl 350 000
for general damages. According to the
plaintiff that case is much closer to the present case where
the plaintiff had a tibia fracture and brain injury.
Plaintiff, thus, submits that a fair and
reasonable compensation for the general damages should be
R1
500 000.
Defendant's
Argument
[24]
In argument before me, the defendant concedes that the plaintiff
sustained a moderately severe diffuse brain injury but denies
that
such brain injury was severe as argued by the plaintiff. The
defendant also submits that the plaintiff's evidence that he
was
conscious for a period of five days is not congruent with the report
of the neurosurgeon which state that the plaintiff's Glasgow
coma
scale was 15/15 the following day and that he was semiconscious.
According to the defendant the plaintiff was not seriously
injured as
the neurosurgeon states in the report that he made good recovery. The
defendant admits that the fracture tibia will
require the removal of
the screws in future.
[25]
The defendant denies that the judgment in
Dlamini
to which the
plaintiff refers is a close mirror of the present case. According to
the defendant the plaintiff in the
Dlamini
-judgment suffered more serious
injuries than the plaintiff in this instance. The
defendant
refers to other judgments which are accordingly similar
with the present case. The judgments are:
Malope v
RAF
2009 where the plaintiff sustained a fracture of the tibia
and fibula and was awarded R90 000;
Pinane v RAF
where the
plaintiff sustained brain injury and was awarded R450 000 and
Mgomezulu v RAF
case number 04643/2010 where the plaintiff
suffered a compound fracture and was awarded R600 000. The submission
by the defendant
is that a fair and equitable amount in the
circumstances of the present case should be R500 000.
Analysis
[26]
I am in agreement with the defendant that the
Dlamini
-judgment
is not a mirror image of the current case. In the
Dlamini
-judgment the plaintiff suffered very serious injuries
like: severe right foot injury with dislocation of his
second
metarsophalangeal joint and damage to the navicular cuneiform
joint and inter-cunieform joint; severe injuries to the head and face
with intracranial bleeding and a mandible fracture and irreversible
brain damage. Similarly, the judgments I have been referred
to by the
defendant are also not on all fours with the current matter. I am
mindful of the fact that previous judgments are used
only as a guide
when determining general damages but the facts of those judgments are
far out in comparison with the facts of the
current matter and are,
as such, not helpful
[27]
In this instance, it is evident from the experts' reports that the
plaintiff, due to the injuries sustained in the accident,
is
entitled to be compensated for general damages:
27.1
He suffered pain when the accident occurred. He suffered further pain
occasioned by the treatment he
received for the injuries and he
continues to suffer the pain even long after the accident. The
neurosurgeon refers
to this pain as chronic. The experts say he
will suffer more pain when the implants are removed.
27.2
He has also suffered loss of amenities of life. The experts are
agreed that because of the injuries,
the plaintiff has difficulty
standing for a long time, walking long distances and can no longer
run. He can no longer do any prolonged
weight bearing and strenuous
exercise and struggles to perform his tiling work due to the pain.
27.3
He is disfigured because of scarring to his head, knee, lower leg and
ankle. He has abrasion scar on
the left lumbar region and a bony
deformity of the lower tibia.
[28]
It is, thus, my view that in the circumstances of this case the
plaintiff should be awarded an amount of R650 000 as just and
equitable compensation for general damages.
COSTS
[29]
The plaintiff submits that the trial was allocated two days. The
defendant accepted loss of earnings calculations only on the
morning
of the trial thus shortening the hearing to one day. The plaintiff's
contention is that the scale of costs should be granted
for the two
days. The defendant on the other hand left the award of costs in the
discretion of the court.
[30]
I am of the view that the plaintiff as the successful party is
entitled to the costs on the scale of two days. The matter
had
been set down for two days and counsel had as a result been booked
for both days. The plaintiff should as such not be punished
by the
failure of the defendant to provide instructions to its counsel in
advance before the matter was allocated the two days.
ORDER
[31]
In the cirumstances the draft order
marked "XY" and initialled is made
an order
of court.
________________________
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
Counsel
for Applicant:
Adv. M. M. Matsimela
Instructed
by:
Mphela & Associates
Counsel
for Respondent:
Adv.
K. Mongwe
Instructed
by:
Aucamps c/o Herman Esterhuizen Smalman Attorneys
Date
heard:
08 MARCH 2017
Date
of judgment:
22 MARCH 2017
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
GAUTENG)
BEFORE
THE HONOURABLE JUDGE MOTHLE ON 22 MARCH 2017
CASE
NO. 83408/14
In
the matter between:
PRINCE
KADUKU
PLAINTIFF
-and-
ROAD
ACCIDENT
FUND
DEFENDAN
T
ORDER
AFTER
HAVING HEARD COUNSEL FOR THE PARTIES,
the following order is
made:
1.
The Defendant to pay Plaintiff the amount of
R 1 712 069.50
which
amount shall be paid on or before 14 days
from date of this order to the Plaintiff's Attorneys, Mphela
&
Associates, in settlement of the Plaintiff's claim, by direct
transfer into their trust account, the details of which are
as
follows:
MPHELA
& ASSOCIATES TRUST ACCOUNT
BANK
: STANDARD BANK
BRANCH
CODE
: 05-26-47-41
ACCOUNT
NO
: [...]
TYPE
: CURRENT
ACCOUNT
2.
Defendant is not liable for interest on the aforesaid payment
if timeously made;
3.
Defendant is ordered to furnish Plaintiff with an undertaking in
terms of Section 17(4) (a) of
Act 1996 for payment of the costs of
future accommodation of the Plaintiff in a
hospital or nursing home
or treatment of or rendering of a service or
supplying of goods to her resulting from a motor vehicle accident on
18
th
November 2012
after
such costs have been incurred and upon
proof thereof;
4.
Defendant is ordered to pay Plaintiff's taxed
or agreed costs on
the High Court scale as between party
and party UNTIL 9 March 2017, which costs shall
include, but
not limited to:
4.1.
The cost occurred in obtaining payment of the amount mentioned in
1
paragraph 1 above.
4.2.
The costs of one consultation with Plaintiff to consider the tender.
4.3.
The reasonable travelling and accommodation expenses of the Plaintiff
to attend the medico legal appointments of the parties.
4.4.
The reasonable taxable fees of
inter alia
the below mentioned
experts for compiling medico
legal reports, including
joint minutes, actuarial calculations,
RAF reports and addendum reports, as well as the reservation,
preparation and day
fees, if any, of the following
experts:
4.4.1.
DR. MOJA;(NUROSURGEON
4.4.2.
DR MAFEELANE;(ORTHOPAEDIC SURGEON
4.4.3.
DR. KATJENl (CLINICAL PSYCH
4.4.4.
M KATJENl(INDUSTIRIAL PSYCH
4.4.5.
ADELAIDE PHASHA(OCCUPATIONAL THERAPIST
4.4.6.
DR PIENAAR(PLASTIC SURGEON
4.4.7.
MUNRO CONSULTING(ACTUARY
4.5
The costs incurred in transporting the Plaintiff to and from
the
abovementioned medico legal appointments
as well as those arranged by the Defendant (if any);
4.6
The costs of making bundle for trial (if any);
4.7
The costs of counsel;
4.8
In the event that the costs are not agreed, the Plaintiff shall serve
a Notice of Taxation on the Defendant's Attorneys of record:-
4.8.1
The Plaintiff shall allow the Defendant7(seven) Court days from date
of allocator to make
payment of the taxed costs;
4.8.2
Should payment not be effected timeously, the Plaintiff
will be
entitled to recover interest on the taxed or agreed
costs from the date of the allocator to date of
final
payment.
BY
THE COURT
________________________
REGISTRAR