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2024
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[2024] ZAGPJHC 1312
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Phiri v The Road Accident Fund (6521/2022) [2024] ZAGPJHC 1312 (19 November 2024)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 6521/2022
DATE
:
19-11-2024
(1)
REPORTABLE: YES / NO.
(2)
OF INTEREST TO OTHER JUDGES: YES / NO.
(3)
REVISED.
In
the matter between
PHIRI,
ANNA
Plaintiff
and
THE ROAD ACCIDENT
FUND
Defendant
JUDGMENT
WEIDEMAN,
AJ
: This matter was number 19 on
the roll for the week of 8 October 2024.
Counsel
commenced by moving an application in terms of Rule 38(2) and which
was granted.
Plaintiff
was born on 27 May 1978 and the accident from which the claim arose
occurred on 30 April 2021 in Wadeville, Germiston.
All issues were in
dispute.
Negligence:
There is in essence only
two documents available and in terms of which negligence may be
considered. The first is the plaintiff's
statutory affidavit. Her
version of events as uplifted from paragraph 3 of her affidavit,
reads as follows:
"I was crossing the
road when a motor vehicle with registration number PYP336GP then and
there driven by one van Eeden, approaching
at high speed and knocked
me down."
The difficulty with this
version is that the only fact that could be extracted is that both
the plaintiff and the insured driver
were on the road at the same
time and at the same point.
If one
seeks more detail, the versions contained in the OAR must be
considered. Here, the driver’s version was:
"On his way to work
when a female pedestrian just entered the roadway without observing,
with the intention to cross the road…"
The directions indicated
by the driver suggested that the pedestrian entered from the
left-hand side, looking at it from the driver's
perspective.
The
plaintiff stated:
"The pedestrian
alleged that she was knocked down by a vehicle A as she was crossing
the road from north to south direction."
This is the same
direction as the driver.
With
the pedestrian entering from the driver's left-hand side, the
opportunity for the driver is much less to avoid the accident,
than
if the pedestrian crossed from his right and in which case he would
have been able to observe the pedestrian for a far longer
period of
time.
Having
considered the limited facts that are available, the apportionment
between the plaintiff and the insured driver will be on
the basis
that the defendant will be liable for 40 percent of such damages as
the plaintiff may be able to substantiate, that is
60/40 against the
plaintiff.
Quantum:
The injuries as recorded
in the particulars of claim consist of the following:
A
fracture of the proximal left fibula,
An
injury to the left knee,
Injury
to the left shoulder.
The only aspect of
quantum that is relevant for the purpose of this judgment is the
claim for loss of income.
The
plaintiff is still employed at the same company in the same position
as she was before the accident and there is no indication
from the
documentation available to the Court that her position is at risk.
There is therefore no direct future loss of income,
as she is in the
same position as she was before the accident. However, one cannot
think away the injuries and they have and will
in future have an
effect on the plaintiff's ability to retain her position. Should she,
for whatever reason, have to re - enter
the labour market, then she
will have some disadvantages.
Having
considered all the expert evidence available, the Court awards the
plaintiff the sum of R130 000 for impairment of earning
capacity. This amount is pre the apportionment on liability.
The
net amount after applying the apportionment on liability will be
R52 000.
The
order is thus as follows:
1.
The aspect of negligence is resolved on the
basis that the defendant shall be liable for 40 percent of such
damages as the plaintiff
may be able to substantiate;
2.
The defendant shall pay the plaintiff the
amount of R52 000 in respect of loss of earning capacity;
3.
The plaintiff is awarded her party and
party costs as taxed or agreed.
WEIDEMAN, AJ
JUDGE OF THE HIGH
COURT
DATE
:
……………….