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[2011] ZAFSHC 122
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Boshoff v Mangaung Local Municipality and Another (792/2010) [2011] ZAFSHC 122 (4 August 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 792/2010
In the matter between:-
LOUIS BOSHOFF
….....................................................................
Plaintiff
and
MANGAUNG LOCAL
MUNICIPALITY
…........................
First
Defendant
MPE EQUIPMENT CC
…............................................
Second
Defendant
_____________________________________________________
HEARD
ON:
14 JUNE 2011
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
4 AUGUST 2011
_____________________________________________________
[1] The matter came to
court by way of action proceedings. The plaintiff sued the defendants
for payment of compensation in the
amount of R400 000,00, plus
interest thereon at the rate of 15% per annum from the date of the
judgment as well as the costs of
the action. The claim was based on
delict. The action was defended by both defendants.
[2] The pleadings were
exchanged. The stage of
litis contestatio
was reached. The
notice of setdown was served. Rule 16(2)(b) was complied with. The
pre-trial conference was held in Bloemfontein
on 11 May 2011.
Advocate P.J. Loubser and Attorney C. Vorster attended on behalf of
the plaintiff, Attorney J.P. Otto on behalf
of the first defendant
and Attorney G. Watkins on behalf of the second defendant.
[3] The plaintiff
withdrew his action against the first defendant. The notice of
withdrawal was served on the defendants on 23 May
2011 and filed two
days later. Therefore the judgment concerns the plaintiff
versus
the second defendant only.
[4] The second defendant
was previously represented by E.G. Cooper Majiedt Incorporated. On 6
April 2010 they withdrew and filed
a notice to that effect. On 30
April 2010 Christodoulides Attorneys of Klerksdorp came on board as
the second defendant’s
new attorneys. They appointed a local
lawfirm, Horn & Van Rensburg, as their correspondents. On 31 May
2011 they too withdrew
from the case as informed by Mr. Loubser. The
second defendant was apparently informed of their decision by
registered mail (
vide
exhibit “A” certificate of
posting).
[5] The matter was
allocated to me for hearing. On 14 June 2011 there was no appearance
by or on behalf of the second defendant.
Since the notice of setdown
was duly served in terms of Rule 16(2)(b) on 23 August 2010, I
accepted that the defendant was aware
of the date(s) allocated for
the hearing of the matter. Accordingly I was satisfied that the
hearing could go on in the absence
of the second defendant.
[6] The version of the
plaintiff was narrated by one witness, namely: Mr. Louis Boshoff, the
plaintiff himself. He testified that
he was an electrician by
occupation. He was previously in the employ of Centlec. He was
injured in Bloemfontein on Wednesday, 6
June 2007. He was 50 years of
age at the time.
[7] On that day he was
dispatched to Station Road here in the city to repair a broken
streetlamp. He sat on the chairlift of the
hoister mounted onto a
truck. He then mechanically hoisted himself up. The chairlift was
attached to the hoisting-arm. Standing
in the cage in that elevated
position he began working on the electrical cables of a broken
streetlamp. While he was busy fixing
it, the hoisting-arm snapped and
the chairlift sheared off from the hoisting-arm. He was then flung
off the hoisting-cage. He fell
approximately nine metres or so down.
[8] He testified further
that as a result of the fall he sustained certain bodily injuries.
From the scene he was rushed to Rosepark
Hospital. He was admitted.
He was treated in the intensive care unit. He was hospitalised for a
number of weeks. His major complaint
concerned severe back pains. He
was x-rayed. It was then discovered that he sustained spinal cord
injuries. He was operated. Some
pins were inserted to strengthen his
fractured spinal cord. He wore a back support for weeks. After his
operation he received further
intensive treatment at the hospital. He
was immobilised for weeks.
[9] Subsequent to his
discharge from the hospital he spent four more weeks recuperating in
bed at home. His wife nursed and helped
him to get active again. She
supported him in many ways. He used the artificial back support for a
further period of about six
weeks during his home recuperative stage.
He endured a great deal of pain. Although the operation, the
medication, the treatment
and the homecare have somehow alleviated
the intensity of the body pains, he continued to experience pains.
[10] The freak accident
has had an adverse impact on his life. It has been four years since
he was injured, but his back continues
to trouble him a lot. It
remains stiff and painful most of the time. He can no longer sit for
longer than an hour; remain standing
for longer than ten minutes; or
restfully sleep for any significant length of time. He has to turn
now and then in bed. At night
he frequently has to wake up, get out
of bed and stand up. In general, his body movement is now drastically
curtailed in many ways.
Cold weather exacerbates his condition. He
sustained permanent disability. His contract of employment was
prematurely terminated
on medical grounds. He now lives on pension in
the amount of R8 000,00 per month.
[11] Before the injury he
was an active person. Among his hobbies were boat surfing,
kick-boxing marshall art, karate marshall art,
fishing and playing
guitar. He liked karate so much that he became an instructor. He
immensely enjoyed fishing. He longs for the
fun of lazily lying,
sitting or standing while fishing. The dream of boat surfing lives
on, but he realises that he cannot physically
do it anymore. He has
improved, but he accepts that the prospects of becoming better, were
absolutely bleak. He readily accepted
the various facets of the
medical opinion. He has resigned himself to the thought that he will
permanently experience pain and
discomfort –
vide
Dr.
J.J. Fourie’s orthopaedic assessment report filed in terms of
Rule 36(a) and (b). The plaintiff’s case was then
closed.
[12] Mr. Loubser
submitted that the second defendant was negligent and that such
negligence caused the injury which the plaintiff
sustained. I am in
respectful agreement. The plaintiff obtained expert opinion from Dr.
H.J. Marx, a civil engineer, who specialises
in structural
engineering matters. A summary of his expert evidence was filed in
terms of Rule 36(9)(a). According to the summary
of his evidence the
structural specifications of the metal of the hoister-arm was
supposed to be four millimetres thick and an
edge reinforcing plate
was supposed to be welded to the bottom of the hoister-cage.
[13] The expert found,
upon physical examination of the hoister-arm, which cracked, that the
thickness of the metal used, was three
millimetres instead of four
millimetres at the particular point where the hoister-arm cracked.
Moreover, the expert also found
that the specified reinforcing plate
was not welded to the bottom side of the hoister-cage.
[14] Dr. Marx came to the
conclusion that the hoister-arm did not comply with the aforesaid
structural specifications as regards
the thickness of the metal used
in the manufacturing of the hoister-arm and the welding of the
reinforcement plate at the bottom
of the hoister-cage.
[15] As regards the
merits, I would find in favour of the plaintiff. The second
defendant’s denial of negligence falls to
be rejected. I am
inclined to dismiss the second defendant’s plea as far as the
merits are concerned.
[16] As regards the
quantum, I have to point out that the second defendant did not deny
the amount of the plaintiff’s claim.
It follows, therefore,
that the quantum was not an issue. The plaintiff was severely injured
as a result of the second defendant’s
defectively manufactured
equipment or product. The plaintiff’s bodily injuries were
fully described by Dr. J.J. Fourie, the
orthopaedic surgeon. In the
circumstances of this particular case, I am persuaded that the amount
claimed, represents a fair and
reasonable assessment of the
compensation the plaintiff deserves. The compensation claimed is
commensurate to the injury suffered,
the physical integrity
permanently impaired, the persistent discomfort endured and still to
be endured and all the amenities lost.
[17] Accordingly judgment
is granted against the second defendant in favour of the plaintiff
for:
17.1 The payment of the
amount of R400 000,00;
17.2 The payment of
interest thereon at the rate of 15,5% per annum from the date hereof;
17.3 The payment of the
costs of the action.
______________
M.H. RAMPAI, J
On
behalf of plaintiff: Adv. P.J. Loubser
Instructed
by:
Webbers
BLOEMFONTEIN
On
behalf of second defendant: No appearance