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[2016] ZAGPPHC 2
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Mazibukwana v Road Accident Fund (41150/13) [2016] ZAGPPHC 2 (5 January 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 41150/13
5/1/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
NTOMBODUMO
MAZIBUKWANA PLAINTIFF
and
THE
ROAD ACCIDENT
FUND DEFENDANT
Coram:
HUGHES J
JUDGMENT
HUGHES
J
[1]
The plaintiff in this matter is, Nontumbodumo Mazibukwana, who
was involved in a collision on 4 September 2010 at
or near Baden
Powell Drive, Stellenbosch, Cape Province.
[2]
At the time of the collision the plaintiff was a passenger in an
Isuzu bakkie. She had just alighted from the bakkie the vehicle
with
registration numbers and letters CF[…] collided with her. The
driver of the vehicle which collided with the plaintiff
was S J
Makunzi (the insured driver).
[3]
The plaintiff alleges that the insured driver was negligent in one or
more of the following respects:
(a) He failed to heed the presence of
the bakkie on the road adequately and timeously;
(b) He crossed over onto the incorrect
side of the roadway when it was not safe and in opportune to do so;
(c) He failed to alert the driver of
the bakkie of his intentions by hooting or lights of the insured
vehicle adequately or timeously;
(d) He drove at an excessive speed
and did not keep the vehicle under his control;
(e) He did not keep a proper lookout,
brake timeously, swerve or take evasive action;
(f) He failed to maintain his vehicle
and avoid the collision by the exercise of reasonable care.
[4]
The plaintiff sustained serious bodily injuries as a result of the
collision. She had a left through knee amputation; serious
degloving
injuries of the right lower limb and a fracture of the pubic rami on
the right side of the pelvis.
[5]
The dispute in respect of merits is that the defendant raises the
defences of contributory negligence's on the part of the plaintiff.
The defendant submits that I should find that the plaintiff
contributed at least 30% to the occurrence collision. Obviously the
plaintiff submits that the defendant is 100% liable for the
collision.
[6]
The vehicle in which the plaintiff had been a passenger experienced
some mechanical problems and as such was being pushed off
the road
towards the emergency lane by the driver. The plaintiff was then a
front seat passenger in the bakkie.
[7]
The plaintiff testified that whilst she was in the vehicle as a front
seat passenger she observed a vehicle approach from the
opposite
direction. The road is flat with two lanes in either direction and an
emergency lane on either side. The area where the
collision took
place is flat, has no street lights and is not in a built-up area.
[8]
The bakkie she was in had no lights on as it had experienced
mechanical failure and the only lighting came from the approaching
vehicle. This approaching vehicle was driven by the insured driver
and as alighted from the bakkie, next thing she sees is that
the
vehicle is now traveling on the side of the road that the bakkie was
on.
[9]
The bakkie's door was hit by the insured driver's vehicle as the
plaintiff stood between the frame and door of the bakkie. Thereafter
the plaintiff only remembers seeing the vehicle tail light traveling
away from her.
[10]
The plaintiff was cross-examined on the statement of the attending
police officer Constable Jonker. He stated that when he
attended the
scene he noted that both vehicles were in the middle of the road
facing in opposite directions. The bakkie was on
the 'right side
lane' and the plaintiff was found lying in the middle of the right
side lane.
[11]
Jonker further states that the insured driver told him that he was
coming from the direction of Stellenbosch to Kayalitsha
and he,
'did'nt see the people that was busy pushing the vehicle in the
road. After colliding with the vehicle he then had to tum around
to
see what he had collided with'.
Jonker also said that as he spoke
to the insured driver he smelt alcohol on his breath and was told by
the insured driver that he
had had plus minus 6 Heineken beers to
drink.
[12]
The plaintiff was the only witness called to give evidence on the
occurrence of the collision, no other evidence was led but
for the
plaintiff's testimony and the statement of Jonker.
[13]
From the plaintiff's version it is well established that she had
completed alighting from the vehicle and was between the body
of the
bakkie and the front passenger door when she was struck by the
insured driver's vehicle. She thus was a pedestrian at the
time of
the collision and not a passenger as the plaintiff's counsel would
like me to believe.
[14]
In the circumstance of the fact above it is evident to me that the
bakkie was, according to Jonker, on the right side lane
of the road.
If one takes this in relation to the insured driver's direction
version of his direction of travel, the vehicles would
have been
traveling in opposite directions. This also indicates that bakkie was
on its correct path of travel.
[15]
This being the case it stands to reason that the insured driver says
he did not see the people pushing the vehicle and that
he had to turn
around to see what he had collided into, this is indicative of the
insured driver not keeping a proper lookout,
not heeding the presenc
of other road users in this instance the bakkie and failing to take
evasive action in the circumstances.
On these facts alone the insured
driver was negligent in coursing the collision.
[16]
Did the plaintiff contribute in anyway?
The
uncontested evidence of the plaintiff is that she was between the
body frame of the vehicle and the front passenger door when
the
bakkie was struck by the insured driver's vehicle. That being the
case this would place the plaintiff on the far left of the
insured
driver's vehicle and the right hand side of the bakkie, if one takes
into account the photographs used. This means that
the insured driver
would have had to leave his path of travel and travel in the lane of
the bakkie in order to hit the front passenger
door of the bakkie.
That to my mind would not have been something that the plaintiff
would have expected when she alighted from
the vehicle. In this case
she could not have avoided the insured driver's vehicle colliding
with the front passenger door of the
bakkie.
[17]
I can see no failure on the part of the plaintiff to take reasonable
precautionary measure prior to and after the collision
in any way to
minimise the harm that ensued. See Section 1 of the Apportionment of
Damages Act 34 of 1956. In the circumstances
no negligence can be
attributed to the plaintiff as she could not have foreseen that the
insured driver would act in the manner
that he did in order for her
to minimise or avoid the collision.
[18]
In my view, the defendant had failed to prove that the plaintiff
could have avoided the collision in anyway and therefore the
plaintiff is entitled to 100% of her proven damages.
[19]
I now turn to deal with the quantum aspect of the plaintiff's claim.
[20]
The defendant tendered an undertaking in terms of
section 17(4)(a)
of
the
Road Accident Fund Act 56 of 1996
. In addition the defendant did
not dispute that the plaintiff is entitled to its past medical
expenses which have been claimed
by the plaintiff's suppliers to the
turn of R241 328.40.
[21]
Thus the only aspects for consideration by me are that of general
damages and that of past and future loss of earnings/earning
capacity.
[22]
The defendant only filed one expert report, being that of Joan
Andrews, an Occupational Therapist. The plaintiff on the other
hand
filed all the expert reports pertaining to the injuries sustained by
the plaintiff. In the pre-trial held in August 2015 the
plaintiff
sought of the defendant an admission of the various reports however
this was not forth coming.
[23]
Of importance is the fact that the parties agreed that if a denial
with reasons was not forth coming by a specific date in
respect of
the reports then it would be construed that the defendant in fact did
indeed admit the reports. At Para 6 of the Pre-Trial
minute dated 18
August 2015:
'6.2 The plaintiff request the
defendant to indicate which of the plaintiffs expert reports (where
no opposing experts has been
appointed) it denies and to provide the
reasons therefor before close of business on 26 August 2015, failure
of which the expert
reports of the plaintiff can be regarded as
admitted. Defendant: Agreed.'
[24]
In the circumstances as agreed the reports are so admitted. I do not
propose to revisit the reports but save to highlight aspects
therefrom when necessary.
[25]
Dr Sagor, the orthopaedic surgeon, classifies the plaintiffs injuries
as severe. The amputation came about because of the fact
that she
experienced a compound fracture of the left tibia and fibula and a
fracture of the left foot, there was also degloving
of the lower limb
that affected the supply of blood to the leg. Her right lower limb
was also scarred and had blisters and she
had a fracture of her pubic
rami on her right side of her pelvis.
[26]
The orthopaedics report read with the other reports paints a bleak
picture for the plaintiff in respect of her injuries and
worst still
is the fact that she could not be amputated straight away and had to
endure all that pain through various procedures
before she was
eventually amputated on, on 13 October 2010, nine day after the
collision. In addition she was also hospitalised
from the date of the
collision until July 2011 when she was released.
[27]
In the circumstance, the case in point for the award of general
damages is that of
Msiza V RAF 2014 (7E2) QOD 1 (GNP).
This
case also dealt with an amputation above the left knee as a result of
a fracture left femur. The amputation also only took
place some 7-14
days later. Here the court awarded R700 000.00 which equates to
R743
000.00
in today's terms.
[28]
In the circumstances the plaintiff is duly awarded an amount of R743
000.00 for general damages.
[29]
As regards the issue of loss of earnings/earning capacity the
plaintiff only concluded grade 11 and from then she worked as
a full
time live in domestic/carer for 10 months before she was involved in
the collision. The both occupational therapist, Ms
Andrews and Ms
Bester, agree that she requires a prosthesis and aggressive
rehabilitation. With this she has a residual earning
capacity as she
will be mobile. She would require assistance with some of the heavier
household chores though.
[30]
Ms Besselaar, the only Industrial Psychologist, instructed concluded
that the plaintiff at 21 years of age has been severely
compromised
at the beginning of her working life. She does not have any residual
earning capacity as foreseen in both the formal
and informal labour
market and thus she will remain unemployed as she has been from the
date of the accident.
[31]
Ms Besselaar interviewed the plaintiff's employer and
confirmed that the plaintiff had been her housekeeper
and
carer for her disabled daughter. The plaintiff had received training
at a medical centre to perform certain medical procedures
for the
daughter. The employer wanted to send the plaintiff and her daughter
to Damilin College to do an office administration
diploma of 3 years.
The value of her employment at the time was R3500.00-R4000.00 a month
including salary, accommodation, transport
and meals.
[32]
I am not going to follow Ms Besselaar scenario of taking the
plaintiff as an office worker or administrator. In my view she
has
not taken into account that the plaintiff would have had to first
obtain grade 12 to be admitted to Damilin to do the diploma
in office
administration. The plaintiff in my view prior to the collision did
not demonstrate that she even intended to complete
at least grade 12.
Even after the collision the plaintiff has not even attempted to
complete grade 12 via distance learning, at
the least. Therefore I am
satisfied that at the time of the collision she was a domestic and I
will take her as such until retirement.
It is trite that one takes
ones victim as one finds them.
[33]
I therefore concur with the scenario 1 pre-accident and
post-accident as set out in the actuarial calculation of NBC
Holdings (Pty) Ltd dated 31August 2015. In my view there is no
evidence before me to deviate from applying normal contingencies,
of
5% pre-accident and 15% post-accident, as these cater for every
eventuality. Consideration must be had that the plaintiff is
the
recipient of a disability grant.
[34]
Calculation:
Pre
- Accident Past loss R164 019 Pre
-Accident Future loss R 823 569
Less
5% R8200.95
Less 5% R41 178.45
=
R155
818.05
= R782 390.55
Post
-Accident Future loss R 215 833
Less
15%
=
R183 458.05
Subtotal
of net loss
R155 818.05
R598
932.50
Loss
R754 750.55
Less
Disability Grant
R66 930
TOTAL
LOSS
R687 820.55
[35]
Thus the amount of R687 820.55 is awarded to the plaintiff in respect
of future loss of earning/ earning capacity.
[36]
The total amount
R1 430 820.55,
(being R743 000.00 for general
damages and R687 820.55 for loss of earnings) is to be paid to the
plaintiff by the defendant together
with the undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.
[37]
The defendant is ordered to pay the plaintiff's costs on a party and
party scale such costs to include the employment of senior
counsel.
[38]
Consequently the order made is attached marked "A".
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
AT
PRETORIA ON TUESDAY 1JANUARY 2016
BEFORE
THE HONOURABLE JUSTICE HUGHES
In
the matter
between: Case
no:
41150/2013
NTOMBODUMO
MAZIBUKWANA Plaintiff
and
THE
ROAD ACCIDENT
FUND Defendant
HAVING
HEARD COUNSEL ON TUESDAY 1 SEPTEMBER 2015, IN RESPECT OF THE
PLAINTIFF'S CLAIM FOR DAMAGES, AS SET DOWN FOR HEARING IN RESPECT
OF
THE MERITS AND QUANTUM ON 1 SEPTEMBER 2015, IT IS ORDERED THAT:
THE
UNDERTAKING
1. The Defendant shall provide an
undertaking in terms of Section 17(4}(a) of the Road
Accident Fund Act 56 of
1996 ("the undertaking"), to
compensate the Plaintiff for the costs relating to the future
accommodation of the
Plaintiff in a hospital or nursing home or
treatment of or rendering of a service or supplying of goods to the
Plaintiff after
the costs have been incurred and on proof thereof and
arising from the collision which occurred on 4 September 2010.
PAST
HOSPITAL AND MEDICAL EXPENSES BY STATE SERVICE PROVIDERS
2. It is recorded that the Plaintiffs
past medical/hospital expenses have been settled by way of a
Supplier's claim.
3. The Defendant also indemnifies the
Plaintiff and/or its Representatives against any future claims by
suppliers, in respect hereof.
THE
CAPITAL
4. The Defendant is ordered to
pay the Plaintiff the amount of
R1 430 820.55 (One million four
hundred and thirty thousand eight hundred and twenty rands and fifty
five cents only)
("the capital") by way of a lump sum
payment within 14 (fourteen) days from
this
Order, by way of electronic
transfer to the trust account, details
of which are set out hereunder ("the
capital payment").
COSTS
5. The Defendant shall pay the
Plaintiff's taxed or agreed High Court Scale party and party costs,
including for the sake of clarity,
but not limited, to the costs of
the Plaintiff's instructing attorneys, Adendorff Incorporated in
,,
Cape Town and the correspondent attorneys, Savage Jooste
and Adams in Pretoria, as well as the other costs set out hereunder.
6. The Plaintiff shall, in the event
that the costs are not agreed, serve the Notice of Taxation on the
Defendant's attorney of
record.
7. The Plaintiff shall allow the
Defendant 14 (fourteen) court days to make payment of the taxed
costs.
GENERAL
COSTS
8. Any taxed or agreed costs incurred
after the date of this order in obtaining payment of any of the
amounts referred to herein.
9. The Defendant will not be liable
for interest on the outstanding amount.
10. Should the Defendant fail to make
payment of the capital amount within 14 (fourteen) days from this
Order, the Defendant will
be liable for interest on the amount due to
the Plaintiff at a rate of 9% per annum as from the date of this
Order to date of final
payment.
EXPERT
WITNESSES
11. Regarding the expert
witnesses listed hereinbelow ("the experts"), the taxed or
agreed qualifying expenses and
reservation fees of the experts listed
in paragraph 7 below, the taxed or agreed costs attached to the
procurement of the medico
legal and other reports as well as joint
expert minutes of the experts, including x-rays, MRI scans and
Pathology reports, as well
as home and work visits.
12. The experts are:
12.1.
Mr J Heydenrych (Merits Assessor);
12.2.
Dr Jason Sager (Orthopaedic Surgeon).
12.3.
Dr K Le Fevre (Psychiatrist).
12.4.
Mr E Rossouw (Orthotist and Prosthetist)
12.5.
Ms R De Wit (Neuro Psychologist).
12.6.
Ms M Bester (Occupational Therapist)
12.7.
Ms E Auret-Besselaar (Industrial Psychologist)
12.8.
Munro Consulting (Actuary)
TRAVELLING,
ACCOMMODATION AND RELATED COSTS
13. The Defendant shall be liable to
pay the reasonable travelling, accommodation and related costs
incurred as follows:
13.1.
In respect of the Plaintiff to attend medico-legal examinations with
expert witnesses for the Plaintiff.
13.2.
In respect of the Plaintiff to attend medico-legal examinations with
expert witnesses for the Defendant.
13.3.
In respect of the Plaintiff's legal representatives' travelling and
accommodation, attending the Pre-Trial Meeting held on
14 August
2015.
13.4.
In respect of the Plaintiff's legal representatives' travelling and
accommodation, to conduct the hearing on 1 September 2015.
13.5.
In respect of the Plaintiff's expert witness, Ms E Auret-Bessel aar,
travelling to attend the hearing on 1 September 2015.
13.6.
In respect of the Plaintiff and her companion, travelling to attend
the hearing on 1 September 2015.
COUNSEL'S
FEES
14.
The costs of counsel including the employment of senior counsel.
PAYMENT
PROVISIONS
15. Payment of the capital amount as
reflected above shall be effected within 14 days from this Order
("the capital due date")
by way of electronic transfer into
the Plaintiffs attorneys trust banking account, details of
which are listed herein below.
16. Payment of the taxed or agreed
costs reflected above shall be effected within fourteen (14) court
days of agreement or taxation
("the costs due date") and
shall likewise be effected by way of electronic transfer into the
Plaintiff s attorneys trust
banking account, details of which
are listed herein below.
17. Should the capital and/or the
costs not be paid by the relevant due date(s), the Defendant will be
liable for interest thereon
at the prescribed statutory rate.
CONTINGENCY
FEE AGREEMENT:
18. It is recorded that the Plaintiff
entered into a contingency fee agreement and that same complies
with the Act.
TRUST
BANKING DETAILS
19. The Plaintiff's attorneys' trust
banking account details are as follows:
Bank:
FIRST NATIONAL BANK
Account
Name: ADENDORFF INC.
Branch
Name: ADDERLEY STREET
Branch
Code: 201-409
Account
number: […]
BY
ORDER OF THE COURT
________________________
COURT
REGISTRAR
Box
71: Savage Jooste& Adams
Ref
no: M Haasbroek
I
sb
I
MHA103