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[2009] ZAGPPHC 14
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Monareng v Road Accident Fund (41302/2006) [2009] ZAGPPHC 14 (26 March 2009)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG,
HIGH COURT)
DATE: 26 MARCH 2009
CASE NO: 41302/2006
NOT REPORTABLE
In
the matter between:
DANIëL JAMES
MONARENG PLAINTIFF
vs.
THE
ROAD ACCIDENT FUND
DEFENDANT
_____________________________________________________
JUDGMENT
_____________________________________________________
BOTHA J:
This is a so-called third party matter in which the defendant
conceded liability.
The issue of the quantum was argued
before me without reference to any evidence. The parties agreed that
I could have regard to
the summaries of the plaintiff’s
experts.
The plaintiff was
involved in a motor vehicle collision on 26 December 2004. He
sustained fractures of both knees, a rib fracture
and lacerations on
his forehead. He was hospitalized and open inductions were performed
on both knees. The further treatment
that is foreseen consists
mainly in arthroscopies of both knees. It is envisaged that the
plaintiff will have to undergo these
procedures within four to five
years.
The plaintiff is 45 years old. It is
accepted that he will work until he is 65 years old.
At the time of the
collision the plaintiff was a civil servant. In December 2005 he
resigned and started his own business as an
events organiser. It is
not disputed that the plaintiff’s future income will be as
calculated by his actuary namely R2 855
950.00.
According to the
expert reports the plaintiff will require an assistant until he has
undergone the knee replacements. According
to one expert he will
still need an assistant after the replacements. The defendant has
tendered to pay the costs of an assistant
by way of an undertaking in
terms of section 17(4)(a) of Act 56 of 1996.
It is common cause
that the plaintiff will not be able to work during times when he will
have to undergo future remedial procedures
and even when he will be
recovering from them. Mr Vermeulen, who appeared for the plaintiff,
calculated the number of days so
foreshadowed at 261, which will, on
a pro rata basis, give a loss of income of R110 913.69. In my view a
contingency factor should
be applied on this amount on the basis that
the plaintiff may well be able to be productive and earn money even
whilst in hospital
or recuperating at home. I agree with Mr
Mogagabe, who appeard for the defendant, that a factor of 15% should
be applied. That
would leave a loss on this score of R94 276.63.
What remains of
the claim for loss of earning capacity is an award for the diminution
of the plaintiff’s residual earning
capacity as a result of his
injuries. Mr Vermeulen suggested that it be determined as a
percentage of his total future earnings.
He argued that the
plaintiff’s future income would have been subject to a normal
contingency deduction of 10%, which would
amount to R285 595.00.
With his injuries, he argued that the contingency factor should be
15%, giving an amount of R428 392.50.
He suggested that the
difference between the amounts of R428 392.50 and R285 595.00, which
is R142 797.50 should represent the
plaintiff’s residual loss
of earning capacity. Mr Mogagabe did not seriously question this
methodology. I am therefore
prepared to find that the plaintiff
suffered a loss in an amount of R142 797.50.
It was also common
cause that an amount of R1 390.00 had to be awarded in respect of
unpaid past medical expenses. It was common
cause that future
medical expenses should be covered by an undertaking in terms of
section 17(4)(a) of Act 56 of 1996.
In respect of general damages Mr
Vermeulen contended for an award of R200 000.00. Mr Mogagabe
contended for R180 000.00.
In a similar case
an award of R180 000.00 was made in 2006. See
Jijingubo
v RAF
[2006] JOL 18626
(Ck)
.
In my view I should award R180 000.00 under the head of
general damages.
Mr Vermeulen asked
that the travelling expenses of the plaintiff’s Polokwane
attorney be allowed. He was at court and I
can see no reason why it
should not be allowed, lest a problem arise on taxation. I shall
also allow the qualifying fees of the
witness van Zyl, Greef,
Prinsloo and the actuary of the firm WellsFaber - Human & Morris.
In
the result the following order is made:
Defendant is
ordered to pay the plaintiff an amount of R418 464.13.
The defendant is ordered to
furnish the Plaintiff with an undertaking in terms of Section
17(4)(a) of the Road Accident Fund,
No 56 of 1996, to compensate
Plaintiff for future accommodation in a hospital or nursing home or
treatment of or rendering of
a service or supplying of goods to
Plaintiff resulting from injuries sustained by him/her as a result
of an accident that occurred
on 26 December 2004, as well as for the
remuneration of an assistant in the amount of R14 500.00 per annum.
Defendant is to pay plaintiff’s
party and party costs that shall include:
the qualifying fees of the
witnesses van Zyl, Greeff, Prinsloo and the actuary from the firm
WellsFaber – Human &
Morris.
The reasonable
travelling expenses of attorney P Smit to attend the trial on 24
and 25 March 2009.
_____________________
C BOTHA
JUDGE OF THE HIGH COURT