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[2012] ZAGPPHC 214
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Shongwe v Road Accident Fund (27351/08) [2012] ZAGPPHC 214 (4 September 2012)
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NOT
REPORTABLE
IN
THE HIGH COURT OF THE REPUBLIC OF
SOUTH
AFRICA NORTH GAUTENG, PRETORIA
Case
Number: 27351/08
DATE:04/09/2012
In
the matter between:
POPI
IRENE SHONGWE
..............................................
Plaintiff
And
ROAD
ACCIDENT FUND
…........................................
Defendant
JUDGMENT
BAM
AJ
1.
The plaintiff instituted action against the defendant as a result of
damages sustained by her during a motor vehicle accident.
Due to the
defendant's failure to comply with Rules of Court, the defendant's
defense was struck out in terms of an order of this
Court dated 15
June 2012. The matter was subsequently enrolled by the plaintiff to
prove the quantum of her damages.
2.
On 22 August 2012 the matter came before me. Mr Geach SC, for the
plaintiff, informed me that the defendant was in default. Mr
Monyane
then announced that he appeared for the defendant and applied for
postponement of the matter to enable the defendant to
apply for
re-instatement of its defense. This application was opposed.
3.
The application for postponement was informal and not substantiated
by any documents. Mr Monyane could not explain why a substantive
application had not been lodged and could further not advance any
information regarding what steps the defendant had taken in respect
of its situation since 16 June 2012, when its defense had been struck
out. Mr Monyane's address from the bar lacked a basis for
an
application to postpone the matter. The application for postponement
was accordingly dismissed with costs.
4.
The plaintiff, Popi Irene Shongwe, was called to testify. According
to her she sustained a back injury and certain scratches
to her head
during a motor vehicle accident which occurred on 3 October 2005.
After seven years she still experiences pain in her
spinal cord, and
it is getting worse. She is unable to walk or stand for lengthy
periods of time, neither can she sit for long.
She is now 48 years of
age. She is employed as a teacher and is experiencing trouble
performing her duties. As a result of the
injury to her back she is
not any more able to coach sport at school. She is also experiences
problems having sexual intercourse
with her husband, resulting in
marital problems. During cross-examination by Mr Monyane she stated
that she has not heard of any
complaints from her employer.
5.
In argument Mr Geach referred me to the summaries of plaintiff's
experts contained in the bundle on quantum regarding, inter
olia the
calculation of the plaintiff's damages. In respect of the plaintiff's
future loss of income, I was referred to the calculation
by Robert J
Koch on page 231 of the quantum bundles.
It
was submitted by Mr Geach that the following awards should be made to
the plaintiff:
(i)
Past medical expenses:
.........................................
R 16 849 05
(ii)
Loss of future income (contingency of 10%):
.........
R
1 222 082 00
(Hi) General
damages
................................................
R
700 000 00
Total
............................................................................
R
1938 93105
6.
It was submitted by Mr Monyane that the plaintiff's loss of income
should be calculated at no more than R451 935 00 and that
general
damages not to exceed R240 000 00.
7.
In considering the amounts to be awarded to plaintiff, under the
heads referred to in par 5 above, I took into account the plaintiff's
oral evidence and the expert summaries filed by the applicant. The
selected expert evidence quoted below, to my mind, encompasses
the
main issues pertaining to the determination of the amounts to be
awarded.
8.
The injury to the plaintiffs back was a fracture of the T8 vertebra.
In
the report of Dr J J L Heymans, the plaintiff's orthopedic surgeon,
dated 12 July 2010, it is stated that the plaintiff, at that
stage,
still experienced back pain and discomfort. According to this report
the plaintiff is unfit to handle heavy objects or to
stand for long
periods of time.
Certain
conservative treatment was prescribed for the applicant that would
have resulted in a "normole arbeidslewensspan".
The
radiologist report of Dr A A S Burger, dated 15/06/2010, filed by the
plaintiff, reads as follows:
"DORSAL
SPINE
A
previous compressive injury is seen on the T8 vertebra. It currently
has a wedge shape.
No
severe disturbance of the alignment of the dorsal spine seen
anywhere.
No
further bony injuries seen.
LUMBAR
SPINE & PELVIS
Alignment
not disturbed.
No
fractures or dislocations seen.
Disc
spaces appear intact.
Pelvic
bones and hip joints appear uncomplicated."
9.
After having considered all relevant expert reports filed by the
applicant, the plaintiff's
industrial psychologist, Mr J P Venter,
in his report dated 24 August 2010, concluded as
follows:
"6.3
Compensation for earning capacity loss.
She
will probably earn the same pre and post-accident. However Ms Bekker
opinion that she has become a more vulnerable employee
is noted. She
can cope without making expecting huge accommodations from her
employer. The government has clearly published policies
regarding
their sympathy and intent to accommodate disability. 5o she would not
need to seek a sympathetic employer - they are
already.
And
she would not have sought employment outside of State according to
her plans. So I would suggest something like a lump sum payment
would
probably be the type of compensation that would be suitable.
I
defer to medical opinion regarding possible future complications.
From my understanding of the stated medical opinion it would
not
affect her employability."
10.
Taking into account all relevant information, I am not persuaded that
the plaintiff will suffer any future loss of income. The
question
whether the plaintiff would have been likely to be promoted in
future, without having suffered the injury to her back,
must be
evaluated taking into consideration the plaintiff's education, her
work performance in the past etc.
It
appears to me that before the accident, the plaintiff, on the
probabilities, had prospects to be promoted some time in future.
However, the more important issue is whether, now, after the
accident, due to her present physical condition, the plaintiff has
no, or lesser, prospects to be promoted. The plaintiff did not adduce
any oral evidence in that regard at all. She did not tell
me that she
has no prospects to be promoted. The only aspect she did emphasize,
was that she finds it difficult to perform her
normal or usual duties
as teacher. This evidence is somewhat contradictory to the findings
of the experts alluded to above and
does not prove that she would
probably not be promoted in future. The facts that the plaintiff is
experiencing pain, that she cannot
stand for long periods and that
she cannot participate in sport anymore, do not mean that she is
disqualified from being promoted
or that, on the probabilities, she
will not be promoted in future.
11.
Accordingly I am unable to find that the plaintiff has proved that
she will suffer future loss of income as submitted by Mr
Geach. The
fact that it was conceded by the defendant that the
plaintiff
should be compensated for future loss of earnings, albeit for a
lesser amount than what was suggested on behalf of the
plaintiff, is
clearly not binding on this Court.
12.
In considering the amount to be awarded for general damages, it is
obvious that the nature and extent of the injuries sustained
by the
plaintiff, and the pain she has suffered and is still suffering, is
the most important consideration. The injury to the
plaintiff's back
was without doubt very painful. The evidence, which is uncontested,
proves that the plaintiff is still suffering
from pain and
discomfort. However, the amount of R700 000 00 in that regard,
suggested by Mr Geach, is glaringly excessive. A fair
amount for
general damages, in my opinion will be R300 000 00.
13.
In view of the nature of the injury sustained by the plaintiff, the
standard undertaking regarding future medical expenses,
in terms of
section 17(4)(a) of Act 56 of 1956 should also be ordered.
14.
The amount awarded to the plaintiff is therefore the amount of R300
000 00 for general damages plus R16 849,05 for past medical
expenses;
a total amount of R316 849,05. The latter amount, the undertaking in
terms of section 17(4){a) of Act 56 of 1996, and
the costs order is J
reflected in the attached order marked X.
A
J BAM
ACTING
JUDGE OF THE HIGH COURT
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
Number: 27351 /2008
In
the matter between:
POPI
IRENE SHONGWE PLAINTIFF
and
ROAD
ACCIDENT FUND DEFENDANT
C^RAFJ
ORDER
By
agreement between the parties it is ordered THAT :
1.
The Defendant pays the Plaintiff the sum of R 316 849,05 by way of
delictual damages directly into the trust account of the Plaintiffs
Attorney, viz GP VENTER ATTORNEYS, STANDARD BANK, HATFIELD BRANCH
(BRANCH CODE : ….., ACCOUNT NUMBER : …...
2.
The Defendant furnishes the Plaintiff with an Undertaking in terms of
Section 17(4)(a) of Act 56 of 1996.
3.
The Defendant pays the Plaintiff's taxed or agreed party and party
cost of suit to date hereof on the High Court scale which
costs will
include the costs of Senior Counsel and the costs of the report of
and consultations with as well as the preparation
and reservation
fees, if any, of the expert witnesses DR JJL HEYMANS, ELZETH JACOBS,
DR. PL LE KG WAR A, HENK STEYN. DR. ROBERT.
J KOCH. DR. AJ TROSKIE. ,
as well as the travelling cost of the Pontiff to attend at trial and
subsistence costs as well as the
Plaintiff's travelling costs and
subsistence costs to attend to all medico-legal appointments.
BY
ORDER
REGISTRAR