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2016
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[2016] ZAFSHC 211
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Mpelo v Road accident Fund (838/2014) [2016] ZAFSHC 211 (1 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:NO
Of
Interest to other Judges:NO
Circulate
to Magistrates: NO
Case
number: 838/2014
In
the matter between:
NEO
GETRO MPELO
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
JACOBS,
AJ
JUDGMENT
BY:
JACOBS, AJ
HEARD
ON:
11 November 2016
DELIVERED
ON:
01 December 2016
Introduction
[1]
The plaintiff instituted action against the defendant as a result of
a motor vehicle accident which occurred on 22 August 2009.
The
plaintiff was a passenger at the back of the said motor vehicle.
On 9 June 2015, Mocumie, J as she then was,
granted an order,
per
agreement between the parties, in terms of which the defendant was
declared liable for 100% of the plaintiff’s damages.
The
plaintiff’s claim for loss of income was also determined and
finalised with the claim in respect of past medical and
hospital
expenses as well as general damages being postponed.
[2]
The matter was set down for trial on 8, 9 and 11 November 2016 in
order to deal with the outstanding issues. In response to
the
plaintiff’s claim the respondent filed its plea including two
special pleas wherein it raised the point of the plaintiff’s
alleged non-compliance with Regulation 3 of the 2008 Regulations to
the Road Accident Fund Act, 56 of 1996 (the Act) and further
contended that the plaintiff’s RAF4 form, was defective. At the
hearing, it was agreed between the parties that the plaintiff
should
be given an opportunity to remedy the defect. Subsequently the
plaintiff remedied the defect by submitting a corrected RAF4
form.
[3]
The parties agreed to file heads of arguments on 14 November 2016
pursuant to which the Court will make a determination. I received
the
plaintiff’s heads of argument as agreed and only received the
defendant’s heads of argument upon enquiry on 23
November 2016.
The defendant having submitted same on 16 November 2016 but, due to
incorrect case number furnished, could not be
traced, hence I
received a copy. I found it necessary to mention these developments
so as to explain the delay in finalising the
judgment.
Salient
facts
[4]
The plaintiff abandoned his claim for past medical and hospital
expenses while the defendant, on its part, conceded that the
plaintiff’s injuries are serious and that the plaintiff
qualifies for general damages.
[5]
As a result of the above mentioned collision the plaintiff sustained
the following bodily injuries:
5.1
Fracture of right clavicle;
5.2
Ribs fractures;
5.3
T12 and L1 fractures;
and
5.4
Brain haemorrhage.
[6]
As a result of these injuries:
6.1
The plaintiff had to undergo medical treatment;
6.2
The plaintiff was hospitalised during the medical treatment;
6.3
The plaintiff will have to undergo medical treatment;
6.4
The plaintiff was unable to perform his work as efficiently as he did
prior to the collision;
6.5
Due to the progression of the degenerative disease, as a result of
the injuries sustained in the collision, the Plaintiff’s
functional ability will in future deteriorate leading to a loss of
earning capacity;
6.6
The plaintiff experienced pain and suffering and will experience
future pain and suffering due to the injuries sustained;
6.7
The plaintiff suffered a loss of amenities in life and will suffer
future loss of amenities of life.
Issues
[7]
The issue in dispute between the parties relates to general damages.
The defendant conceded that the plaintiff does qualify
for general
damages as claimed. Therefore the amount of general damages to
which the Plaintiff is entitled is the only issue
that I have to
decide.
[8]
The plaintiff submits that based on the injuries and their sequelae
general damages are worth R3 000 000, 00.
ANALYSIS
OF EXPERT EVIDENCE
[9]
At the time of the accident the plaintiff was employed as a General
Worker by Bennett’s Scrapyard. Gerard Jacobson, the
Actuary
reported on 21 May 2015, that according to two wage slips dated 18
June 2009 and 27 June 2009 it appears that the plaintiff
earned R625,
95 per week, at the time of the accident.
[10]
According to the medico-legal report of the Industrial Psychologist,
Dr. Susan Van Jaarsveld dated 14 July 2014, but for the
accident the
plaintiff could have continued working as a labourer until the
retirement age of 65. Furthermore, Industrial Pychologist,
Dr
Delpoort, also confirmed, that the Plaintiff’s injuries
affected his life style tremendously.
[11]
Both the Neurologists, Dr Mokabane (for the Defendant) and Dr Jaap
Earle (for the Plaintiff), agree that the Plaintiff suffered
moderately severe traumatic brain injury and as a result thereof, his
speech as well as his intelligence have been severely affected
to
such an extent that the Plaintiff cannot even remember his own
children.
[12]
Dr Moloto, the Orthopaedic Surgeon, also confirmed that the Plaintiff
suffered moderately severe brain injury, thus affecting
his brain
function which amongst others is demonstrated by his very slow
speech.
Cases
the plaintiff submits, which compare with the current matter
[13]
The plaintiff submitted a number of cases which are allegedly
in
pari materia
with the present case. Although I highlight two of
such cases hereunder, they are all distinguishable from the case
under consideration
on material aspects.
Zarrabi
v RAF
2006, Vol 5, C&B 4-231(T)
Severe
brain injury with Neuro-cognitive consequences, fractured nose,
ruptured right humerous, fractured radius and ulna, intellectual
fallout, sympathetic employment only.
Amount
awarded: R800 000, value in present day is R1 452 800,00.
Du
Toit v RAF
(17587/2013) [2015] ZAGPPHC 599.
Severe
closed head injury, skull and facial fractures, left clavicle
facture.
Amount
awarded: R1 400 000, 00, value in present day is
R1 464 400, 00.
Defendant’s
offer
[14]
The Defendant submits that it, upon careful consideration, made an
offer of R450 000, 00 (Four Hundred and Fifty Thousand
Rand) in
favour of the Plaintiff. The Plaintiff in return rejected the
offer.
[15]
The defendant submits that in the case of
Nhlumayo
v General Accident Insurance Co Ltd
1986 (3) SA 859
(D), the Plaintiff suffered more or less the same
injuries as those suffered by the Plaintiff in the present case and
was then
compensated with the amount of R1 200,00 (One Thousand
Two Hundred Rand).
Application
[16]
In
casu
the nature and extent of the plaintiff’s pain and suffering and
loss of amenities of life are well documented in the various
medical
reports. It is unequivocally accepted that the plaintiff’s
brain damage is irreversible. The plaintiff’s longevity
is
however not affected.
[17]
I am mindful of the caution in
De
Jong v Du Pisanie N.O.
2005 (5) SA 547
(SCA) at paragraph 60 wherein the court, after noting
the tendency towards increased awards in respect of general damages
in recent
times, was readily perceptible and re-affirmed conservatism
as one of the multiple factors to be taken into account in awarding
damages. The court concluded that the principle remained that the
award should be fair to both sides, it must give just compensation
to
the plaintiff, but not pour out largesse from the horn of plenty at
the defendant’s expense, as pointed out in
Pitt
v Economic insurance Co Ltd
1975 (3) SA 264
(N) at 267.
[18]
On the issue of awarding quantum, a court has a wide discretion to
award what it considers to be fair and adequate compensation
to the
injured party. It has been said that there is no hard and fast rule
of general application requiring a court to consider
past awards. It
is generally accepted that it could be difficult to find a case on
all fours with the one being heard and that
awards in deciding cases
should be considered only as a guide of how other courts arrived at
an award. See in this regard
Protea
Insurance Company v Lamb
1971 (1) SA 530
(A) at 535 H.
[19]
Mofokeng
v Road Accident Fund
(11101/2009) [2014] ZAGP JHC 160 (1 July 2014) (C & h VII at B 4
– 12) the plaintiff had been awarded R700 000,
general
damages, for a moderately severe head injury and soft tissue injuries
to the neck and lower back. The brain injury was
referred to as a
diffuse rotational shear injury, characterised by an effective
disconnection between the frontal lobes and the
rest of the brain.
The said case favourably compares with the case under consideration.
[20]
I am of the view that, taking the above into consideration, a fair
and just compensation for general damages would be an amount
of
R850 000, 00.
[21]
I accordingly make the following order:
1)
The defendant shall pay the plaintiff as general damages the sum of
R850 000, 00.
2)
The afore-mentioned amount in paragraph 1) above shall be paid by the
Defendant on/before
31
December 2016
.
3)
In the event that the Defendant fails to make payment on/before 31
December 2016 the Defendant shall be liable
to pay interest at 10.5%
per annum.
4)
The Defendant shall pay the Plaintiff’s taxed or agreed party
and party costs on the High Court scale.
Such costs shall
include the following:
4.1
The reasonable qualifying and reservation fees, attendance fees,
costs of reports and expenses (if any) of the following
experts:
4.1.1
Dr. J F Ziervogel
4.1.
2 M A Lekeka
4.1.
3 Dr Verster and Partners Inc.
4.2
The cost of counsel.
4.3
The reasonable traveling and accommodation costs of Plaintiff to
attend trial.
5)
In the event that Plaintiffs costs are not agreed, the Plaintiff
shall serve a Notice of Taxation on the Defendant’s attorney
of
record; and the Plaintiff shall allow the Defendant 14 (fourteen)
court days to make payment of the taxed costs.
______________
S.
JACOBS, AJ
On
behalf of the plaintiff:
Adv. I. Olivier
Instructed
by:
Lengau
Attorneys
Bloemfontein
On
behalf of the defendants:
Adv. N.D.T. Khokho
Instructed
by:
N.
Maduba Attorneys
Bloemfontein