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[2016] ZAGPPHC 463
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Tsotetsi v Road Accident Fund (7510/2013) [2016] ZAGPPHC 463 (1 June 2016)
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
1/6/2016
Case
No: 7510/2013
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In the matter between:
GEORGE JABULANI
TSOTETSI Plaintiff
and
ROAD ACCIDENT
FUND Defendant
HOLLAND-MÜTER
AJ:
[1]
The plaintiff, an adult male person, was involved in a motor vehicle
accident on 25 June 2010. He was 36 years of age at the
time of the
accident, currently 42 years old. He was employed as a truck driver
at Spaza Hardware, Lenasia, Johannesburg.
[2]
He was injured whilst on duty and taken to the Lenmed Hospital,
Lenasia. He was in hospital for 3 months. He sustained an open
fracture of the left tibia and fibula which resulted in a series of
operations whilst in hospital. This is the serious injury resulting
in the plaintiff to be confined to the permanent use of crutches. He
also suffered some minor injuries to his hand and a whiplash
to the
neck, these injuries not of a permanent nature. The injuries are as
follows:
(a)Whiplash
injury to the neck;
(b)
Head injury, although not serious with no permanent sequella;
(c)
Back injury with muscle spasms;
(d)
Injury to the upper limbs;
(e)
Injury to the hand; and
(f)
Fractures to the left tibia and fibula (already mentioned).
[3]
Four pre-trials took place between the parties, the important
pre-trial being the 3
rd
that took place on 21 October
2015. See the minutes of this meeting in the Bundle: Index to
Pleadings on p 23 -26. The merits of
the matter was conceded 70/30 in
favor of the plaintiff. It was further recorded on the 4
th
pre-trial held on 14 April 2016 that only the quantum of damages was
to be adjudicated on 25 April 2016. See p 27-28 of the bundle
above.
[4]
The matter came before me on the 25th of April 2016 and proceeded on
the 26th and 28th of April 201 6. The parties submitted
written heads
of arguments at the end of the proceedings. The matter was at first
set down for trial on 26 October 2015, but was
postponed until 25
April 2016 because defendant indicated that it did not intend to deal
with the matter before the claim submitted
by the plaintiff in ten11s
of the provisions of the Compensation for Occupational Injuries Act,
130 of 1993 was not finalized.
There will be referred to this as the
COIDA award. The entry on the court file on 26 October 2015 indicates
that the costs for
that day was to be costs in the cause.
[5]
At the beginning of the trial on 25 April 2015 the defendant
indicated that the defendant wants the matter to be postponed again
pending the final COIDA award.
[6]
After hearing arguments, my ruling was that the matter should proceed
as it is not necessary to wait for the final determination
by the
Commissioner with regard to the COIDA award. All that needs to be
done is to inform the Commissioner of any award made by
this court
when finalizing the COIDA award. It is an almost daily occurrence in
this court that matters are finalized without any
final COIDA award
available.
[7]
The plaintiff testified and although he was cross examined, in
detail, he impressed the court as an honest witness. There is
no need
to make any credibility finding on his evidence.
[8]
The plaintiff confirmed the injuries sustained in the accident as set
out in the particulars of claim and expert reports. The
most serious
injury is that to the left leg, open tibia and fibula fractures and,
as recorded by the orthopaedic surgeon on behalf
of the defendant, Dr
Gantz, a 30% probabil ity of amputation of the plaintiff s lower leg.
See Bundle: Expert's reports on p117.
[9]
The probable amputation of the lower leg was also mentioned by Dr
Kana at the Lenmed Hospital as early as on the date of the
accident.
See p19 in the bundle of pleadings. Dr Kana repeated this fear during
later treatment of the plaintiff during July 2010.
See p 22 in the
Index Bundle. The plaintiff confirmed this during his evidence, but
stated that he was afraid of losing his leg.
[10]
The plaintiff explained how he tries to manage the chronic discharge
from the left leg. He described is as "'rotten".
See Dr
Kumbirai's report on p54. This is also evident from the other experts
and it is described as '2 draining sinuses 'by Dr
Gantz on p116. Dr
Lekgwara describes it as 'pus oozing from the leg'. See p 13. Dr
Gantz examined the plaintiff on 6 November 2014
(more than 4 years
after the accident ) and found that the tibia was 'ununited with
displacement' and that the wound developed
'sepsis '. He therefore
concluded the 30% probability of an amputation of the leg. This all
amounts to the unanimous opinion by
the experts that the plaintiff is
totally unemployable as a result of the accident. It must be
mentioned that the plaintiff was
a truck driver before the accident
and can no longer continue as a driver. His level of education and
age in all likelihood contributes
to this opinion.
[11]
After closing of the cases by both parties, the plaintiff moved for
an amendment of par 9 in the particulars of claim, to substitute
the
amounts previously claimed. The defendant opposed the amendment
sought by arguing that it was prejudicing the defendant. The
court
allowed the amendment in that it was a mere amendment to the amounts
claimed. I can mention that amendments like these often
occurs and
there can be no prejudice to the defendant in any way.
[12]
The parties made oral submissions and also in their heads as to the
amount to be awarded for (1) general damages and (2) for
the loss of
future earnings. I am indebted to counsel for these written
submissions. I will now deal with the quantum to be awarded
for the
damages to the plaintiff.
FUTURE
MEDICAL EXPENSES:
[13]
This is covered by the Undertaking as provided for in terms of
section 17(4)(a) of the Road Accident Act, the Undertaking limited
to
70% of any future medical expenses incurred by the plaintiff
which
are accident related.
GENERAL
DAMAGES:
[14]
The court is, when awarding an amount for the
non-patrimonial
or non-
pecuniary damages
( the
'general damages'),
guided by the fundamental
principles which relate to the assessment of these kind of damages. I
do not in tend discussing these
principles in detail, suffice to
state the following:
14.1
The age, sex, status, and relevant physical and psychological
characteristics of the plaintiff may influence the award, eg
physical
state and other aspects of the plaintiff at the time of the accident
as to endure pain or not etc. For more see
Klopper, The Law of
Third Party Compensation 1
st
Ed on p 144.
14.2
The judge or magistrate will assess the award to what he/she deems
to be
fair and reasonable
under the circumstances, the
fairness and reasonableness towards the plaintiff and the defendant,
i e the Fund.
14.3
The l ist is not exhaustive, but include the pain endured, the
intensity of the pain, the disfigurement of the body of the
plaintiff, loss of amenities, shortened life/working expectancy of
the plaintiff etc. See
Klopper p
1
50 on.
14.4
Previous comparable awards, adjusted to reflect current values, are
also taken into account when calculating the reasonable
and fair
award to be made for general damages. See
Road Accident Fund v
Marunga
2003 (5) SA 164
SCA at 169
E-F.
[15]
The injuries sustained by the plaintiff are listed above. The most
serious in jury is the open fracture to the tibia
and fibula,
the fracture is not united at present. It is almost certain that
after six years, the fracture is still not united
and the constant
ooze from the open wound is of serious concern. The 30% probability
of an amputation has to be taken into account.
The plaintiff will in
all probability never walk without crutches again. He may even need a
prosthesis in future should his leg
be amputated. He is considered
totally unemployable in future by all the expe1ts. This impacts on
his personal life and he is dependable
on others for many things is
his daily life. It was clear form his movements in court that his
balance was affected, he almost
fell from the witness stand when
leaving it because of his lack of balance and walking on crutches.
[16]
The plaintiff was a healthy man before the accident. He played social
soccer before the accident and did his own gardening.
He was
financially independent and cared for his family. See the reports by
both occupational therapists. There is no need to repeat
the contents
of the reports. Suffice to state that both orthopaedic surgeons
calculated the plaintiff s WPI (whole person impairment)
to be at
least 30%. The plaintiff s left leg shows a 7 cm shortening and
septic non-union of the open fracture to his left leg.
See both
orthopaedic reports.
[17]
Various case law was referred to by the counsel in their heads and
during argument in court. I do not intend to summarize all
the cases,
but will refer to the most applicable cases. The two most similar
cases in my view are:
17.1
Msiza v Road Accident Fund 20
1
4 (7E2) QOD Vol
7
where the plaintiff suffered the amputation of a leg above the knee,
with lacerations to the scalp. She was unable to walk as
a result of
the amputation because she did not have a prosthesis. She used a
walking frame to move about. She lost the ability
to do any type of
work and could not perform any house hold duties. She was awarded R
700 000,00 during 2014, the equivalent today
almost R 772 000,00.
17.2
Protea
Assurance
Co Ltd v Lamb
1970 (2E3) QOD
117
A where the plaintiff,
aged 29 at the time, sustained injuries to his legs involving a
closed fracture of the left femur and a compound
fracture of the
right tibia and fibula. After several skin grafts over several years,
he had to wear a built up shoe with limited
movement of his knee and
ankle. His personality changed and he gave up all extra-mural
activities such as playing rugby and dancing.
He underwent various
procedures during the following 4 - 5 years after the accident. He
was awarded R 20 000,00 for general damages
after appeal, the
converted value today almost R 1 222 000,00. Mr Dube on behalf of the
defendant submitted that the court should
only award R 400 000,00 for
general damages in his heads of argument, but in par
2.1
3
of his heads recommended an amount of between R 400 000,00 and R
500 000,00 for general damages. I have already mentioned above that
the plaintiff moved for an amendment of the monetary values in the
particulars of claim, the amendment granted by the court after
hearing arguments from both counsel.
[18]I
am therefore satisfied that an award of R
850 000,00
less
30% apportionment will be a reasonable and fair award for general
damages in this matter. The amount after applying the 30%
apportionment is
R
595
000,00.
FUTURE
LOSS OF EARNINGS:
[19]
The plaintiff's actuarial calculation was done by GRS Actuarial
Consulting and was available when the trial commenced on the
25
th
of April 2016. Counsel for the defendant informed the court on the
26
th
of April that the defendant will need two to three
weeks to obtain their actuary’s calculation and requested a
postponement
therefore. The request was refused and by some 'miracle'
the calculation was available on the 28
th
of April. No
reason for the sudden availability of the report was tendered. When
the two calculations were compared, the total
loss of income were R
27 230,00 apart on a figure of R 2 359 800,00 by the defendant's
actuary and R 2 332 570,00 by the plaintiff
s actuary. No
contingencies were applied by the actuaries.
[20]
Both counsel made their submissions as to the percentage of
contingencies to be applied by the court. The plaintiff applied
a 5%
contingency on the past loss and 10% on the future loss, a total loss
of R 2 165 202,20. The defendant applied a 10% pre-morbid
and 15-20%
post-morbid contingency arriving at a total loss of R 1 61 1 940,00 -
R 1 517 120,00. See the respective written heads
of arguments by both
counsel.
[21]
When applying a certain percentage as to the contingencies, the
normal percentage i s 5% pre-morbid and 10% post-morbid unless
there
are specific contingencies taken into account. See
Klopper
supra
on
p
198.
The
normal percentages applied in cases are 5% pre-morbid and 10%
post-morbid. To apply a higher percentage contingency, specific
circumstances need be present, such not in this matter. I could find
no reason why not to apply the percentage submitted by the
plaintiff
s counsel. I therefore find that the plaintiff should be compensated
as follows:
Pre-morbid
( income if the accident did not occur );
Past
loss: R 510 168,00 less 5% = R 484 659,60.
Future
loss: R 1 907 785,00 less 10% = R 1 717 006,60
Total
loss pre-morbid had the accident not occurred: R 2 201 666,20
Post-morbid
( income now that the accident occurred):
Past
loss: R 38 383,00 less 5% = R 36 463,85. Future loss: none.
Loss
of future earnings to be awarded:
R
2 201 666,20 (Pre-accident) less R 36 463,20 (post accident)
=
R 2 165 202,40.
This
amount should be apportioned by the 70/30 apportionment as agreed to
by the parties at the 3
rd
pre-trial, the amount to be
R
1 515 641
,60.
COSTS:
[22]
Costs normally follows success. The plaintiff was successful and
should be awarded costs of the action. Counsel for the plaintiff
submitted that such order should be on a higher scale than the usual
in view of the defendant's alleged delaying tactics during
the trial.
After considering the arguments by both counsel, I am however not
inclined to go that far to impose a punitive cost
order.
ORDER:
The
following order is made:
[1
] The defendant is to pay the plaintiff the amount of
R 2 110
641,60
( Two Million One Hundred and Ten Thousand Six Hundred and
Forty One Rand and Sixty Cents ) in respect of damages for personal
injuries
sustained by the plaintiff in a road accident on 25 June
2010, the amount payable on or before 28 June 2016;
[2]
The defendant is ordered to furnish an undertaking in terms of the
provisions of section l7(4)(a) of the Road Accident Act,
59 of 1996,
in respect of future accommodation in a hospital or nursing home or
treatment of/or rendering services or supply goods
to the plaintiff,
George Jabulani Tsotetsi, arising from injuries sustained in the
above mentioned motor vehicle accident which
occurred on 25 June
2010;
[3]
The defendant must make payment of the plaintiff s agreed or taxed
party and party costs on a High Court scale which costs shall
inter
alia include the following:
3.1
The fees of senior/junior counsel on a High Court Scale;
3.2
The costs of the expert witnesses' medico-legal reports and the
actuarial report of which notice has been given, the costs
to include
the preparing of the joint minutes and addendums between the experts;
3.3
The costs shall include the costs for the 26th of October 2015, the
25th and 26th of April 2016 and the 28
th
of April 2016 on a
party and party High Court scale;
[4]
The following provisions will apply with regard to the determination
of the aforementioned taxed or agreed costs:
4.1
the plaintiff shall serve the notice of taxation on the defendant's
attorney of record;
4.2
the plaintiff shall allow the defendant 10 (ten) court days to make
payment of the taxed costs from date of settlement or taxation
thereof;
4.3
should payment not be effected timeously, the plaintiff will recover
interest at the rate of 10,5% per annum on the taxed or
agreed costs
from date of allocator to date of final payment.
[5]
Should the payment of the capital amount of
R 2 11
0 641
,40
not be effected on 28 June 2016, the plaintiff will be
entitled to recover interest on the said amount at the rate of 10,5%
per
annum from 1 July 2016 to date of final payment.
--------------------------------
HOLLAND-MUTER AJ
BY ORDER OF COURT
REGISTRAR OF THE
HIGH COURT PRETORIA