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[2013] ZAECBHC 12
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Kaiser v MEC for the Province of the Eastern Cape, Roads & Public Works (435/2009) [2013] ZAECBHC 12 (24 October 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– BHISHO)
CASE NO: 435/2009
DATE HEARD: 18/10/2013
DATE DELIVERED:
24/10/2013
BERESFORD
DALE KAISER
PLAINTIFF
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
DEFENDANT
FOR
THE PROVINCE OF THE EASTERN CAPE
RESPONSIBLE
FOR ROADS AND PUBLIC WORKS
JUDGMENT
ROBERSON J:-
[1]
On 25 December 2007 the plaintiff was injured in a motor vehicle
accident on the R72 road in the
Eastern Cape Province. His Land
Rover vehicle, in which he was travelling, was also extensively
damaged as a result of the
accident. The defendant is the
statutory authority with the duty to maintain provincial roads, one
of which is the R72.
The plaintiff instituted an action against
the defendant, initially for damages arising from the injuries he
sustained in the accident,
alleging various grounds of negligence on
the part of the defendant relating to the condition of the R72. At
a later stage
he amended his claim to include a claim for the loss he
suffered as a result of the damage to his vehicle.
[2]
On 26 October 2010 Seti-Nduna AJ delivered a judgment in which she
found the defendant liable
to the plaintiff for any damages he might
prove or on which the parties might agree.
[3]
On 18 October 2013 the matter proceeded before me on the issue of
quantum. The plaintiff’s
past and future medical expenses
were agreed in the sum of R61 779.35 and R125 846.00 respectively.
Both counsel agreed that
the so-called normal contingency of 15%
should be applied to the future medical expenses and I have no reason
to decide otherwise.
The resultant amount is R106 969.10.
General damages and the loss occasioned by the damage to the Land
Rover remained in
issue.
GENERAL DAMAGES
[4]
The evidence under this head was a medico-legal report by Dr. P.A.
Olivier, an orthopaedic surgeon,
which was admitted by agreement.
The plaintiff suffered a fracture of the sternum and a fracture which
involved the lamina
of the 7
th
cervical vertebra.
The plaintiff was first treated conservatively and a cervical collar
was fitted. Pain in the cervical
area however persisted and an
MRI of the cervical area revealed the presence of slight
anterolisthesis of the cervical vertebra.
The plaintiff was
referred to a neuro-surgeon who performed an anterior cervical fusion
and fixated the fusion with a cervical
plate. When Dr. Olivier
examined the plaintiff in 2009 the plaintiff complained of pain in
the cervical area, which became
worse if he moved his head in a
certain direction. This pain was sometimes
accompanied by a dull occipital headache.
The plaintiff also
experienced pain if he tried to look behind him, when he slept on is
right hand side, and when he handled heavy
objects. On
examination Dr. Olivier found that the range of flexion and extension
in the cervical area was restricted to
a degree of 50%, rotational
movements were restricted to 25%, and lateral flexion on both sides
restricted to 25%.
[5]
Dr Olivier was of the opinion that a second surgical procedure would
be required approximately
five years after the accident, which would
either be an anterior cervical fusion or a cervical disc replacement.
[6]
The plaintiff would have suffered a severe degree of pain and
discomfort for 16 weeks after the
accident and a further 16 weeks of
severe pain and discomfort is anticipated after the second surgical
procedure. The plaintiff
will also suffer a slight to moderate
degree of pain and discomfort in the cervical area in the future.
He will also suffer
pain and discomfort as a result of accelerated
age-related degenerative changes of the discs between the 5
th
and 6
th
cervical vertebrae. He will not be able to
perform strenuous physical activities such as lifting heavy objects.
[7]
I was referred by Mr. de la Harpe, who appeared for the plaintiff, to
the awards in a number of
cases where neck injuries had been
suffered. I have considered the varying degrees of severity of
the injuries and their
sequelae in these cases, as well as the
present value of money. Mr. de la Harpe suggested an award in
the range from R100
000.00 to R125 000.00 and Mr. Maseti, who
appeared for the defendant, fairly agreed, although he suggested an
amount towards the
lower end of that range. In my view an
amount of R120 000.00 is an appropriate award in the present case.
Damage to vehicle
[8]
The plaintiff led the evidence of an expert witness, Mr. Kenneth
Bezuidenhout, who is a qualified
and experienced motor vehicle
assessor. He examined the vehicle on 4 January 2008 and was of
the opinion that the costs of
repairs would exceed its pre-accident
value and repairs would therefore be uneconomical. He took into
account the age, general
condition, accessories and mileage of the
vehicle, and estimated its pre-accident value at R193 500.00.
The vehicle was sold
for scrap for the price of R18 744.90 and
Bezuidenhout was of the opinion that this was a fair and reasonable
sum. The loss
therefore amounted to R174 755.10. There
was no expert evidence to contradict that of Bezuidenhout and there
was no reason
not to accept his evidence.
[9]
Mr. de la Harpe submitted that interest on this amount should run
from the date of summons or
date of service of summons. I am of
the view that interest on this sum should only run from the date on
which the notice
of intention to amend the claim was served on the
defendant’s attorneys, namely 11 February 2011.
ORDER
[10]
The defendant is ordered to pay to the plaintiff:
[10.1] R288 748.45
plus interest thereon at the legal rate from date of judgment to date
of payment.
[10.2] R174 755.10
plus interest thereon at the legal rate from 11 February 2011 to date
of payment.
[10.3] Costs of
suit plus interest thereon at the legal rate from a date 14 days
after allocatur to date of payment.
J M ROBERSON
JUDGE OF THE HIGH
COURT
Appearances:
For
the Plaintiff:
Adv
D de la Harpe,
Instructed
by
Drake
Flemmer & Orsmond Attorneys,
King
Williams Town
For
the Defendant
Adv
M Maseti,
Instructed
by
State
Attorney,
East
London