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[2013] ZAFSHC 39
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Lesaoana v Road Accident Fund (1135/2011) [2013] ZAFSHC 39 (7 March 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: 1135/2011
In the matter between:
LESAOANA TANKISO
ELIAZARA
.................................................
Plaintiff
and
THE ROAD ACCIDENT
FUND
....................................................
Defendant
________________________________________________________
JUDGMENT BY:
MHLAMBI, AJ
________________________________________________________
HEARD ON:
22 JANUARY 2013
________________________________________________________
DELIVERED ON:
7 MARCH 2013
________________________________________________________
INTRODUCTION:
[1] On 28 November 2007,
the plaintiff, Tankiso Eliazara Lesaoana, an unemployed adult male
born on 27 March 1983, residing at Zone
2 Winnie Mandela, Thembisa,
Gauteng Province, sustained serious personal injuries when a motor
vehicle in which he was a passenger,
was involved in a collision with
another motor vehicle of which the Defendant was a statutory insurer
and liable for compensation
in terms of Section 17 (1) (a) of the
Road Accident Fund Act, No 56 1996 (hereinafter referred to as the
“Act”).
[2] The collision took
place along the R59 road near Viljoenskroon, Free State Province. The
Plaintiff then instituted action against
the Defendant for payment of
both special and general damages. The Defendant opposed the action.
[3] However, on 7
November 2012, the parties, by agreement, secured a Court Order on
the following terms:
The quantum and merits
are separated in terms of High Court Rule 33(4);
The Defendant undertakes
to pay 100% of the plaintiff’s proven damages;
The defendant to pay the
costs in respect of the merits.
[4] This matter is now
before this Court to determine the quantum of the Plaintiff’s
claim, and more so in respect of the
amount to be awarded for general
damages and loss of income.
ADMISSIONS:
[5] The Defendant has
conceded and requested the Court to make the following Order in
regard to the Plaintiff’s claim for
future medical, hospital
and para-medical expenses in the following terms:
“
Defendant
will supply the Plaintiff with an undertaking in terms of
Section
17(4)
(a) of the
Road Accident Fund Act, 56 of 1996
, to pay all the
expenses of the plaintiff pertaining to future treatment and/or
accommodation of the plaintiff in a hospital and/or
clinic or similar
institution and for all expenses pertaining to the medical treatment
as well as medical expenses, lodging and
services rendered to the
plaintiff resulting from the injuries sustained by the plaintiff in
the accident on 28 November 2007”.
[6] The Defendant
admitted the reports of the following experts of the Plaintiff:
Neurosurgeon, Dr
Jaap
Earle
(Record p.47);
Orthopaedic surgeon, Dr
S M Sara
(Record p.63);
Neurosurgeon, Dr
Pieter
Repko
(Record p.78);
Neurologist, Prof
S
D Saffer
(Record p.96);
Occupational therapist,
Letitia Delport
(Record p.106);
Industrial
Psychologist, Prof
E van Zyl
(Record p.144);
Clinical Psychologist,
Mariska Pienaar
;
Psychiatrist, Dr
M E
Smith
.
[7] The plaintiff and the
defendant agreed on the calculation of the plaintiff’s total
loss of income being the amount of
R463 001.63
. This
calculation already makes provision for general contingencies at the
rate of 5% in relation to past loss of income and 15%
in relation to
future loss of income.
[8] The Defendant
conceded that plaintiff suffered the following injuries:
8.1 Fracture of the left
femur;
8.2 Fracture of the right
radius and ulna;
8.3 Fracture dislocation
of the right knee;
8.4 Ruptured spleen;
8.5 Injury to liver and
right kidney;
8.6 Head and chest injury
(with no residual symptoms);
8.7 Blunt abdominal
trauma – with a tender and conspicuous abdominal scar;
8.8 Dislocated right
elbow – required with no residual symptoms and normal X-rays.
THE PLAINTIFF’S
CASE:
[9] The Plaintiff was the
only witness to give oral testimony. He states that his employer was
the driver of the motor vehicle of
which he was the passenger and who
subsequently died as a result of the injuries sustained in the
collision.
[10] He is a Lesotho
citizen who came to South Africa during 2003 seeking employment.
Since 2003, when he started working to date,
he had no work permit.
During 2006, it came to his knowledge that he should be the bearer of
a valid work permit. This was at the
time he started work with his
deceased employer. He was unable to secure a work permit entailed a
lot of travelling, spending time
outside his area of work and
residence and at time sleeping in Pretoria. Besides, he did not know
all the procedures to be followed
to acquire a work permit, but as at
the time of the collision, he had started making enquiries in this
regard from members of the
public, despite spending most of his time
on the road.
[11] Ever since 2003, he
was the holder of a valid travel document or passport. He stayed at
Thembisa with his grandmother and next-of-kin
and earned weekly wages
of R250.00 up until the time the collision took place.
[12] He sustained
injuries to his right hand which he can no longer use to lift
objects. His right knee was stiff and he can, therefore
not bend the
leg. His right hip was injured and the right foot broken.
[13] He has not worked
since the accident because of the broken hand. Even though it has
healed, it has no power. When he lifts
containers of water, the right
hand becomes painful. He liked gardening, but cannot pursue that kind
of work anymore as he cannot
bend because of the knee injury and the
weak hand. That concluded the plaintiff’s case.
THE DEFENDANT’S
CASE:
The Defendant closed its
case without leading evidence.
THE PARTIES
SUBMISSIONS:
THE PLAINTFF:
[14] The extent of the
Plaintiff’s injuries, contends Plaintiff’s Counsel, to an
award of R800 000.00 as claimed
for general damages.
[15] The injuries have
resulted in on-going symptoms, restricted function, and inability to
perform daily activities, sport and
work as an artisan.
[16] The Plaintiff is and
will always be totally unemployed in the open labour market.
THE DEFENDANT:
[17] Counsel for
Defendant, having referred to various cases, contends that the
Plaintiff is entitled to an award of R400 000.00
to R450 000.00
in regard to general damages.
[18] The Plaintiff, being
a Lesotho citizen without a valid work permit earned illegal wages,
but for the forcibility that he might
acquire a work permit, at least
a half to two-thirds of Plaintiff’s claim for lost income may
be awarded.
GENERAL DAMAGES:
[19] The documentation
and the reports by the neurosurgeons indicate that the Plaintiff had
an occipital fracture. He was unconscious
with a post traumatic
amnesia of about two months and throughout this period he was
heavily, sedated from multiple injuries.
[20] In addition to the
occipital fracture he had a fracture of the left hip and femur and
the left ulna where there are two vertical
surgical scars on the
lower forearm above the wrist, a fracture of the right knee which was
treated by open reduction internal
fixation and the left ankle. He
has unsightly laparotomy scars from three procedures. He still gets
pain if he leans forward too
much and at times feels as if he wants
to vomit. His spleen was removed but he is not aware what was done to
the liver and right
kidney but according to documentation both were
repaired. He had an intercostal drain with the marks still visible in
the right
upper chest laterally.
[21] The date of the
accident was 28 November 2007.He was first taken to Tshepong Hospital
in Klerksdorp and then sent straight
through to Chris Hani
Baragwanath hospital where he stayed until February 2008. He said he
was mainly in bed but at some stage
he cannot say when the
physiotherapists tried to help him to get out of bed and walk. His
knee was very sore and every time, even
now, when he walks the knee
is painful.
[22] He is aware of his
physical limitations as a result of the injuries. The limitations to
perform remunerative work must affect
the Plaintiff psychologically,
which must be considered a form of suffering. The report by the
orthopaedic surgeon is that severe
permanent impairment of function
will persist.
[23] According to the
occupational therapist’s report, he struggles to walk up and
down slopes, on uneven terrain or slippery
slopes. He has an abnormal
gait pattern. He experienced severe pain and suffering for a long
period of time, and still does.
[24] Counsel for the
Defendant conceded in argument that the plaintiff is entitled to an
award of R500 000,00.
[25] In making an award
for damages, a court merely needs to draw on its own experience and
does not require to be reminded of earlier
awards by the citation of
an array of decisions:
Marine and Trade Insurance Co. Ltd v
Goliath
1968 (4) SA 329
(A). Comparison with other cases
though never decisive, is instructive:
Hulley v Cox
1923 AD 234
at 236.
[26] It is my considered
opinion that in the given circumstances, an award of R550 000.00
would be fair compensation in this
matter.
LOSS OF INCOME:
[27] In
DLAMINI v
MULTILATERALE MOTORVOERTUIG-ONGELUKKEFONDS
1992 (1) SA 802
(T) it was held that illegal earnings as in illegal taxi- driving
could be taken into account as an indication of earnings capacity
and
that a deduction of 30% should be made for the change- over from
illegal to legal taxi – driving.
[28]
In Shield
Insurance Co. Ltd v Booysen
1979 (3) SA 953
(A) at 964 D -E
it was said that even though some activities may be found to be
illegal, they can neverless be relied upon as an
indication of a
person’s earning capacity.
[29] Counsel for
Defendant argued that the Plaintiff’s income was illegal as he
had no work permit. See
Santam Insurance Ltd v Refguson
1985 (4) SA 843
(AD);
Dlamini en Ander v Protea Assurance
Company Ltd
1974 (4) SA 906
(A)
.
However, he concedes
that at least a half to two thirds of plaintiff’s claim may be
awarded. Even though I agree with counsel
in this regard, I am of the
view that 70% of the claim should be awarded.
[30] Consequently, my
considered opinion is that an award for loss of income in the amount
of R324 000.00 (three hundred and
twenty four thousand rand) is
appropriate.
ORDER:
[31]
In the result the
following order is made
:
31.1. Defendant is
directed to pay the Plaintiff an amount of R874 000.00 (Eight
hundred and seventy four thousand rands) in
respect of both general
damages and loss of income.
Defendant shall provide
the plaintiff with an undertaking in terms of
Section 17
(4) (a) of
Act 56 of 1996 to pay all expenses of the plaintiff pertaining to
future treatment and/or accommodation in a hospital
and/or clinic
or similar institution and for all expenses pertaining to the
medical treatment as well as medical expenses,
lodging and services
rendered to the plaintiff resulting from the injuries sustained by
the plaintiff in the accident on 28
November 2007.
Defendant is liable for
payment of the plaintiff’s party and party costs, which shall
include the following:
The reasonable
preparation / qualifying and reservation fees and expenses (if any)
of :
Dr Jaap Earle
Dr S M Sara
Dr Pieter Repko
Dr S D Saffer
Ms L Delport
Prof. E van Zyl
Ms M Pienaar
Dr M E Smith
_____________________
J. J. MHLAMBI, AJ
On behalf of the
plaintiff: Adv. S. K. Mojamobu
Instructed by:
Rampai Attorneys
BLOEMFONTEIN
On behalf of the
defendant: Adv. M. D. J. Steenkamp
Instructed by:
Moloto Stofile Inc.
BLOEMFONTEIN
/eb