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[2017] ZAGPPHC 913
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Lawrence v Road Accident Fund (3804/15) [2017] ZAGPPHC 913 (12 April 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 3804/15
12/4/2017
In
the matter between:
MAKHUTHUDISE
LAWRENCE
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
TEFFO,
J:
[1]
The plaintiff, a 26 year old male, instituted an action against the
defendant for damages suffered as a result of bodily injuries
sustained by him in a motor vehicle collision which occurred on 30
March 2014 on Mokgwathi Road, in Mokgwathi, Limpopo Province.
[2]
The collision occurred between an unidentified motor vehicle and the
plaintiff who was a pedestrian at the time.
[3]
I was requested by the parties to determine the issue of liability
and quantum limited to general damages only. The parties
have agreed
that the defendant will pay an amount of R1 768 310,00 (one million
seven hundred and sixty eight thousand three hundred
and ten rand) to
the plaintiff for loss of earnings. The defendant has tendered a
section 17(4)(a) undertaking in respect of future
hospital, medical
and ancillary expenses which the plaintiff has accepted.
[4]
Only the plaintiff testified in support of his case while the
defendant closed its case without calling any witnesses.
THE
EVIDENCE
[5]
The plaintiff testified that on 30 March 2014 he was at his
homestead. He took a walk with his sister who was accompanying a
friend to her homestead. The two accompanied his sister's friend home
and on their way back home, he was involved in an accident.
They were
walking on the right hand side of the road and as they were
approaching a hump, an unknown motor vehicle came at
a high speed,
moved out of the road and knocked him down on the side of the road.
When he realised that the motor vehicle was moving
out of the road,
he could not do anything. It was late for him to have taken
precautionary measures to avoid the collision. The
accident happened
at Mokgwathi village in Bolobedu. The motor vehicle that collided
with him was travelling on the tarred road
from Mokgwathi to Tzaneen.
He does not know the name of the road where the collision took place.
He was walking outside the road
when accident took place.
[6]
Under cross-examination he was asked as to how far was he walking
from his sister and he testified that she was on his right
although
he could not tell the distance. He was also asked if he remembered
the accident or was he told about it. He testified
that he was told
about it and also remembers certain things after he was told. He was
further asked as to when did he start to
remember anything about the
accident and he testified that when he consulted doctors and they
were asking him questions. He testified
that if any of the doctors
could tell the court that he did not remember the accident, he will
not be telling the truth. He admitted
that he was medico legally
examined by Dr Chabalala, the Psychiatrist. He was asked if he
remembered what time did the accident
happen and he testified that he
did not and that the accident happened at night. When asked whether
he would agree if told that
the accident happened at 03:00, he said
he did not know.
[7]
His sister was not injured. The motor vehicle collided with him
towards the end of his body, on the waist and he did not even
touch
his sister. It knocked him down with its right front lamp. They were
walking from Mokgwathi to Tzaneen in the direction North
to South and
the insured vehicle was travelling in the opposite direction. The
motor vehicle was travelling on the left and it
wanted to avoid the
speed hump. When it knocked him down, its whole body was outside the
tarred road. He corrected his evidence
and said he was knocked down
with the left part of the motor vehicle. He conceded that if the
entire body of the motor vehicle
was outside the road, it means his
sister was able to avoid the collision and he did not. He disputed
that if his sister managed
to avoid the collision, he could have also
managed. He was asked what was the state of his sobriety and he said
he was sober. He
could not recall how he was dressed on that day.
[8]
Under re-examination he testified that he left his homestead just
after 21:00 when he accompanied his sister's friend with his
sister
to her homestead and estimated the distance to her homestead as ±
10 minutes. When asked what time could the accident
have happened, he
testified that he did not know. He further testified that there are
no street lights in the area but he could
see the lights of the motor
vehicle because it was not that dark. That concluded the plaintiff's
evidence.
[9]
No evidence was placed before court to counter the evidence presented
by the plaintiff. In his address counsel for the defendant
raised
various issues relating to the fact that no accident report was
furnished to the defendant, police were never called to
the scene and
no statements were taken from witnesses relating to the accident.
Further to this he questioned the time of the accident,
why the
plaintiff's sister who was allegedly walking with him at the time of
the collision did not testify, the fact that Dr Chabalala
mentioned
in his report that the plaintiff could not remember how the accident
happened and that according to the information recorded
in the
hospital records of the plaintiff, he was drunk and that because
according to his evidence, his sister was able to avoid
the
collision, the plaintiff was contributory negligent as there was no
reason why he could also not have avoided the collision.
[10]
Most of the issues raised were not taken up with the plaintiff when
he was testifying especially the issue about the accident
report and
also the failure to call the police immediately after the collision.
According to the records from Letaba hospital where
the plaintiff was
admitted immediately after the accident, he was semi-conscious on his
arrival at the hospital. It was reported
that he was knocked down by
a motor vehicle while walking at approximately 03:00. He was at the
time from a gathering. He was seen
by Doctor Mathye in casualty and
diagnosed for PVA, alcohol intoxication and head injury. The accident
was a hit and run and it
happened at night. All this information on
the hospital records was not taken further or investigated. There is
no reason why the
defendant did not appoint assessors to follow up
the information. The plaintiff testified two years and some months
after the accident.
He testified that he does not know what time the
accident happened. All he could say was that as far as he can recall
he accompanied
his sister's friend with his sister to her homestead
around 21:00. To argue that 21:00 and 03:00 are far apart is neither
here
nor there and does not assist the defendant in any way. The
hospital records are clear that he was semi-conscious when he arrived
at the hospital and could not talk. It is not known where the
information that the accident happened at 03:00 came from. This can
also not be regarded as certain because there is no evidence to give
the court a picture as to how the plaintiff came to the hospital,
what was the distance from where the collision occurred and the
hospital and whether he was immediately thereafter taken to the
hospital or whether they had to wait and get a vehicle or an
ambulance to transport him to the hospital. It does not necessary
mean that because they accompanied his sister's friend to her
homestead at 21:00, that they walked to her residence for ±10
minutes therefore the accident could have happened at that time.
[11]
The only thing that I find strange in the hospital records is that it
is recorded that he was from a gathering. As I indicated
it is not
known who wrote that information and the person was not called to
testify. What I have under oath is the evidence of
the plaintiff
which has not been challenged. There is no evidence to prove that he
was indeed drunk and that he was contributory
negligent. It is clear
from the evidence that the accident happened in a village at night.
The plaintiff was not asked as to why
the accident was not reported
to the police. No evidence was presented to indicate what could have
actually happened that resulted
in the accident not being reported.
As to the fact that Dr Chabalala stated in his report that the
plaintiff could not remember
the accident, that cannot be taken
against him. He testified that initially he did not remember but as
he heard what happened and
as he was being asked about it, he could
remember certain things.
[12]
His evidence is that as he was walking on the right-hand side of the
road with his sister, an unknown motor vehicle left the
tarred road,
went outside the road at a high speed to avoid a hump and knocked him
down. It came from the opposite direction and
the way it went out of
the road, he could not do anything to avoid the collision. There is
no evidence to counter his evidence.
He was not walking on the tarred
road but outside the road where he had a right of way. The insured
vehicle was negligent by leaving
the tarred road where it was
travelling and going outside the road to avoid a hump. The plaintiff
has therefore succeeded in establishing
negligence on the part of the
insured vehicle. He is therefore entitled to 100% of the proven
damages caused by the collision.
[13]
The next issue for determination is whether the plaintiff is entitled
to general damages and the quantum thereof. The plaintiff
sustained
the following injuries according to the reports: head injury and
remained unconscious for 4 days and confused for a further
2 to 3
days, multiple lacerations on his scalp and face, leaving him with an
unsightly V-shaped scan on the bridge of his nose
and laceration
injuries on his left iliac crest area. Dr Selahle (the Plastic
Surgeon) describes the scars and deformities on the
plaintiff as
follows: a 3 cm V-shaped scar on the glabella and a 6 x 4 cm
hyper-pigmented scar on the left flank. According to
Dr Selahle the
abovementioned scars have no features of scar hypertrophy but they
are cosmetically unsightly and disfiguring. Dr
Enslin, the
Orthopaedic Surgeon who also refers to a whiplash injury of the neck
states in this report that he assessed the whole
person impairment at
20% and opined that there was permanent serious disfigurement and
serious long-term mental or behavioural
disorder. The plaintiff's
forehead was swollen on admission at Letaba hospital and a Glasgow
Coma Scale ("GCS") score
of 9/15 was recorded. Two days
after the accident the GCS recorded was 12/15. Bilateral
subconjuctival haemorrhages were noted
and a fracture of the base of
his skull (anterior cranial fossa) was diagnosed on clinical grounds.
The CT scan of the brain did
not show an intracranial haemorrhage. He
sustained a laceration to the bridge of his nose and it was suspected
that he had fractured
his nose. A laceration was noted on his lower
lip and in the region of the left orbit. His nose was bleeding. His
left hand was
bruised. According to Dr J J du Plessis, the
Neurosurgeon, the plaintiff suffered a moderate to severe diffuse
brain injury. He
also has a 2% chance of developing epilepsy.
[14]
In
Road Accident Fund v Marunga 2003(5) SA 164
Navsa JA
followed the views of Potgieter JA in
Protea Assurance
Co
Ltd
v Lamb 1971(1) SA 530 A
at 535
A-B
and held that in cases
where the question of general damages 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
compensation to the injured party. He stated
that there was no hard
and fast rule of general application requiring a trial court to
consider past awards but awards in decided
cases might be of some
guidance.
[15]
I was referred to cases that dealt with similar injuries and the
amounts awarded for the damages suffered which I considered,
for an
example, in
Johan Hendrik Adriaan Saunders N.O obo Tshepo Michael
Nkopane case no. 69330/2011
unreported and handed down on
03/10/13, the claimant was awarded an amount of R750 000,00 for
general damages. After taking into
account the injuries sustained and
comparable case law, I came to the conclusion that the most
appropriate and fair amount to compensate
the plaintiff for general
damages suffered is the amount of R850 000,00.
[16]
Accordingly I grant judgment in favour of the plaintiff against the
defendant as follows:
16.1 Payment of the
amount of R2 618 310,00 to the plaintiff in full and final settlement
of the plaintiff's claim.
16.2 Interest on the said
amount of R2 618 310,00 at the rate of 15,5% per annum 14 days from
date of judgment to date of final
payment.
16.3 The defendant is to
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
costs of future accommodation of the plaintiff in a hospital or a
nursing home or treatment of or the rendering
of a service to him or
supplying of goods to him arising out of the injuries sustained by
him in the collision in which he was
involved on 30 March 2014, after
such costs have been incurred and upon proper proof thereof which
costs shall include:
16.3.1. The reasonable
costs incurred in the establishment of a trust for the sole benefit
of the plaintiff.
16.3.2. The reasonable
costs incurred by the trustee in the administration of the
plaintiff's estate.
16.3.3. The reasonable
costs incurred in providing security for the satisfaction of the
Master of the High Court of South Africa
for the administration of
the plaintiff's estate, provided that the costs contemplated in
paragraphs 17.3.1 to 17.3.3 above shall
be limited to the costs
equivalent to those incidental to that which could be claimed by a
curator bonis.
16.4 The defendant is
ordered to pay the plaintiff's taxed or agreed party and party costs
of suit on High Court scale which include
costs of counsel, the costs
of reports and consultations, as well as preparation and reservation
fees, if any, of the expert witnesses,
as well as the travelling and
subsistence costs of the plaintiff and the expert witnesses who
attended the hearing to testify as
witnesses.
____________________
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES:
FOR
THE PLAINTIFF
K MPHAHLELE
INSTRUCTED
BY
BALOYI ATTORNEYS
FOR
THE DEFENDANT
L MALULEKE
INSTRUCTED
BY
BRUMAN DUMA ZITHA ATTORNEYS
DATE
OF JUDGMENT
12 APRIL 2017