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[2013] ZAGPPHC 156
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Mokakale v Road Accident Fund (64897/2010) [2013] ZAGPPHC 156 (12 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: 64897/2010
DATE:12/06/2013
In
the matter between:
MOKAKALE
MOGOMOTSI SHADRACK
….........................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
.........................................................................
DEFENDANT
JUDGMENT
KUBUSHI,
J
[1]
This is a claim for damages arising from a motor vehicle collision
that occurred on the 14 April 2006.
[2]
The issue of merits has been previously settled. The defendant
conceded the merits on 60/40 basis in favour of the plaintiff.
[3]
The parties are before me on quantum only. The plaintiff is claiming
the following damages:
a.
Future medical expenses.
b.
Loss of income
c.
General damages.
FUTURE
MEDICAL EXPENSES:
[4]
The parties are agreed that the defendant will provide the plaintiff
with an undertaking in terms of section 17 (4) (a) of the
Road
Accident Fund Act (the Act).
LOSS
OF INCOME
[5]
The plaintiff is relying in its claim on the following documents:
a.
A joint minute of the orthopaedic surgeons.
b.
A joint minute of the industrial psychologists.
c.
An actuarial calculation based on the joint minute of the industrial
psychologists.
[2]
The issue of merits has been previously settled. The defendant
conceded the merits on 60/40 basis in favour of the plaintiff.
[3]
The parties are before me on quantum only. The plaintiff is claiming
the following damages:
a.
Future medical expenses.
b.
Loss of income
c.
General damages.
FUTURE
MEDICAL EXPENSES:
[4]
The parties are agreed that the defendant will provide the plaintiff
with an undertaking in terms of section 17 (4) (a) of
the Road
Accident Fund Act (the Act).
LOSS
OF INCOME
[5]
The plaintiff is relying in its claim on the following documents:
a.
A joint minute of the orthopaedic surgeons.
b.
A joint minute of the industrial psychologists.
c.
An actuarial calculation based on the joint minute of the industrial
psychologists.
[6]
The actuarial report has been sourced by the plaintiff and the
defendant accepts the calculations. The parties are also agreed
as to
the contingencies to be applied. In respect of pre-morbid calculation
they are agreed that a contingency percentage of 7%
be applied and
for post-morbid a contingency percentage of 20%.
[7]
The parties are agreed that the total amount due to the plaintiff in
respect of the loss of income after the contingency deductions
from
the calculations is the amount of R1 106 897-39. Both parties agree
that the amount is fair and reasonable in the circumstances
of this
case.
[8]
The defendant’s counsel requested the court to make an order
for the payment of the amount in instalments in terms of
section 17
(4) (b) of the Act. Her argument is that, in respect of future
income, the calculations were based on expenses to be
incurred by the
plaintiff. At the time of the collision the plaintiff was an owner
and driver of a taxi. The expenses are for the
salary of a driver who
must be hired to drive the taxi and for the mechanic who will repair
the taxi. These expenses according
to the defendant’s counsel
can be paid out as and when they occur. There is no risk for the
plaintiff as the expenses will
be paid. There can only be a benefit
for him — actual expenses will be paid and the contingencies
will not be deducted. She
contended that the expenses that have been
paid to date will be paid out in a lump sum.
[9]
A proposal in this respect was made to the plaintiff and has been
rejected that is why the defendant is approaching the court.
[10]
In terms of section 17 (4) (b) of the Act where a claim for
compensation under subsection (1) includes a claim for future loss
of
income or support, the Fund or an agent shall be paid by way of a
lump sum or in instalments as agreed upon.
[11]
I am in agreement with the submission by the plaintiff’s
counsel, besides the fact that the plaintiff does not agree,
payment
by way of instalment will be prejudicial to the plaintiff. He will
have to expend money before the Fund pays him. The amount
should be
paid to the plaintiff in a lump sum.
GENERAL
DAMAGES
[12]
The plaintiff relies on the joint minutes of the orthopaedic surgeons
in respect of the claim for general damages. According
to the
plaintiff’s counsel both doctors are agreed about the injuries
sustained by the plaintiff.
[13]
It is common cause that the plaintiff sustained the following
injuries: a. An above elbow amputation of the right arm.
b.
A compound fracture of the right femur.
c.
An injury to the knee.
d.
An urethral injury.
e.
An injury to the left foot.
[14]
As per the medical report of Dr Van den Bout the plaintiff sustained
a severe deformity of the distal femur of a commuted fracture
which
has healed totally. The fracture occurred on the distal right fibula
and there is a hole through the proximal tibia which
was probably
caused by skeletal traction.
[15]
According to the joint minute of the orthopaedic surgeons the
amputation through the right humerus is suboptimal and the plaintiff
has a limitation of movement in the right knee as well as a varus
deformity. Both doctors agree that the possibility of a knee
replacement in future remains.
[16]
The defendant had initially made a settlement offer of R900 000. The
plaintiff’s counsel contended that the amount would
have been
acceptable if it were not for the medical report of the defendant’s
orthopaedic surgeon. This doctor referred in
his report to injuries
which were not noted in the joint minutes, namely, the injuries
sustained
by the plaintiff in his left foot. Due to this injuries the plaintiff
had to increase his claim to R1 200 000.
[17]
The plaintiff’s counsel contended that the plaintiff was
severely injured and traumatised. He suffered a traumatic amputation
of his right arm at the scene of the collision. The arm was recovered
some times after the collision.
[18]
The plaintiff’s counsel referred me to a judgment in VAN
RENSBURG v A. A. MUTUAL INSURANCE CO. LTD 1969 (2) C &
B at p40.
In that case although the plaintiff was severely injured he was not
amputated but he was awarded an amount of R679 000.
He suffered a
fracture of the lower end of the right femur, damaged left patella,
fracture and dislocation of joints of the left
foot, Steinmann’s
pin inserted in the right tibia, patellectomies performed on both
knees, operations and other treatment
lasting 21/2 years and future
arthrodesis anticipated.
[19]
The plaintiff’s counsel argued that the amount of R1 200 000
was fair and reasonable in the light of the awards granted
in the VAN
RENSBURG – judgment.
[20]
The defendant’s counsel submitted that the amount of R900 000
was offered because the main injury was the amputation
of the left
arm. She conceded that the plaintiff suffered injuries to his right
leg including the fracture of the right fibula
though it could not be
said for certain that the said injuries were not pre-collision.
[21]
She referred me to certain judgments as a guideline of how other
courts award damages. In RENS v MEC FOR HEALTH: NORTHERN CAPE
PROVINCIAL DEPARTMENT OF HEALTH 2010 (6D2) Quantum of Damages 1
(NcK), the plaintiff was 10 years old schoolboy and a budding
sportsman and gymnast at the time of the collision. He was 22 years
old when the matter was finalised. He sustained above- elbow
amputation of the left arm as a result of negligent hospital
treatment; subsequent amputation through shoulder. He was without
the
aid of prosthetic limb for more than ten years. He was no longer able
to obtain technical qualification and limited to clerical
work in a
sheltered environment. He was awarded an amount of R732 000 in
today’s terms.
[22]
In KING v GELDENHUYS 1983 (3D2) Quantum of Damages 379 (C) the
plaintiff was attacked by dogs and his right hand was severely
chewed
and had to be amputated. He was also bitten on throat, face and legs.
He underwent eleven operations with possible future
surgery.
He
was seriously disabled and disfigured. He was awarded in today’s
terms an amount of R587 000.
[23]
A claim for general damages comprise of pain and suffering,
disfigurement, permanent disability and loss of amenities of life.
A
court has a wide discretion to award what it considers to be fair and
adequate compensation to the injured party. See PROTEA
INSURANCE
COMPANY v LAMB
1971 (1) SA 530
(A) at 535A-B and ROAD ACCIDENT FUND v
MARUNGA
[2003] 2 All SA 148
(SCA) at para [23].
[24]
The plaintiff has as a result of the injuries lost the enjoyment of
amenities of life as well. According to the occupational
therapist,
he is no longer able to sleep on his right side of the body. He
requires help to tie his shoelaces and requires assistance
with
clothing. He is no longer able to carry out maintenance activities
around the house. He is no longer able to carry out his
pre-accident
leisure activities like soccer, jogging and going to movies. He is no
longer able to walk long distances.
[25]
In my view, an amount of R1 100 000 is a fair and reasonable amount
for compensating the plaintiff for his injuries.
[26]
All the amounts awarded are subject to apportionment of 60% as
agreed between the parties.
[27]
I was not addressed on the question of costs. As is trite the
successful party is entitled to his or her costs of suit. The
plaintiff should therefore be awarded costs of suit equal to the
apportionment agreed upon.
[28]
I make the following order:
a.
General damages are awarded to the plaintiff in the amount of R1 100
000;
b.
Loss of income damages are awarded to the plaintiff in the amount of
R1 106 897-39;
c.
It is recorded that the defendant shall provide the plaintiff with an
undertaking for 60% future medical expenses in terms of
section 17
(4) (a) of the
Road Accident Fund Act 56 of 1996
, as amended.
d.
The defendant is ordered to pay the plaintiff the costs of this suit.
e.
All the amounts awarded are subject to 60% apportionment.
E.
M. KUBUSHI -------------
JUDGE
OF THE HIGH COURT
Appearances:
HEARD
ON THE : 07 JUNE 2013
DATE
OF JUDGMENT : 12 JUNE 2013
PLAINTIFF’S
COUNSEL : ADV M. S. MPHAHLELE
PLAINTIFF’S
ATTORNEY : A.M MAMMILE ATTORNEYS
c/o
MAPONYA LEDWABA INC
DEFENDANT’S
COUNSEL : ADV J. LIEBEL
DEFENDANT’S
ATTORNEY : TSEBANE MOLABA INC