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[2009] ZAGPPHC 129
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Mpande v Road Accident Fund (12560/2008) [2009] ZAGPPHC 129 (3 November 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE: 3 NOVEMBER 2009
CASE NO: 12560/2008
UNREPORTABLE
In
the matter between:
TUMMY
NAGINGTON MPANDE
PLAINTIFF
VS
THE
ROAD ACCIDENT FUND
DEFENDANT
______________________________________________________________
JUDGMENT
BOTHA J:
This is a so-called third party case
in which only an award for general damages has to be made.
The issue of liability has been
settled on the basis of an apportionment of 80:20 in favour of the
plaintiff.
The plaintiff, a pedestrian, was run
down by an unidentified vehicle on 22 July 2006. He was unemployed
at the time. He sustained
a simple fracture of the right tibia and
fibula. He lost consciousness after the collision and regained
consciousness after his
admission to the Baberton hospital. His leg
was bandaged and he was given medication to alleviate the pain. He
was referred to
the Rob Ferreira hospital in Nelspruit where an
external fixator was attached to his right leg. He had to walk on
crutches for
some two months.
Eventually he had to go back to the
hospital to have the pins of the fixator removed.
The plaintiff testified that he
suffers pain in his right foot or lower right leg when he walks too
far. He drinks tablets whenever
his leg is painful. He cannot stand
on his legs for a long time.
The pain in his leg has subsided. It
only resurfaces when he walks long distances and when it is cloudy.
Mr Geach, SC, who appeared for the
plaintiff referred to
De Wet
v Road Accident Fund
reported in
Corbett &
Buchanan V
in which an
amount of R95 000.00 was awarded in 2003. He calculated the present
day value of that award and argued an amount of
R100 000.00 should be
awarded after the apportionment.
Mr Mogagabe, who appeared for the
defendant, argued that the case of
De
Wet
supra
was a more serious case. He referred to several cases reported in
Corbett & Buchanan
,
such as
Gqangeni v Ciskei
MVA
(volume
IV
E
5-1), Fielies vs Road Accident Fund (volume V E 4-1), Duduma vs Road
Accident Fund (volume
IV
E4-5)
and
Deyzel
v Santam Insurance
Company
Ltd (volume I 483)
and
argued that, having regard to the current value of the awards in
those cases, a much lower award should be made than that suggested
by
Mr Geach.
I agree that the award in the case of
De Wet
supra
,
which was an arbitration award, was in respect of a more serious
injury with more serious sequelae.
In
Hodi
v RAF
[2006] JOL 17764(CK)
the court awarded R50 000.00 for a fractured tibia and lacerations to
the groin. The present day value of this award according
to the
labels in
Koch’s 2009
Quantum Year Book
would be
R61 500.00.
Having regard to the evidence of the
plaintiff, who in no way exaggerated his pain and suffering, and
awards in comparable cases,
I am of the view that an award of R75
000.00 would be a fair award to both parties. That means that upon
an apportionment the
plaintiff would be entitled to judgment in an
amount of R60 000.00.
The defendant accepted that costs
should be allowed on the normal High Court scale.
In
the result the following order is made:
Judgment is granted in favour of
the plaintiff in an amount of R60 000.00 with interest at the rate
of 15.5% from the date of
judgment until the date of payment.
Defendant is to pay the
plaintiff’s costs.
________________________________
C. BOTHA
JUDGE OF THE HIGH COURT