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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)    REPORTABLE:  NO

(2)    OF INTEREST TO OTHER JUDGES: NO

(3)    REVISED.  YES

 

 

CASE NO: 70748/14

6/5/2020

 

In the matter between:

 

JJPC  SWANEPOEL                                                                                                   Plaintiff

and

ROAD ACCIDENT FUND                                                                                          Defendant

 

JUDGMENT

 

1.             In this action the plaintiff claimed damages arising from injuries he sustained in a motor vehicle collision which occurred on 13 August 2011 on the R 101 near Hammanskraal.  At the time the plaintiff was driving with family members when their vehicle was struck from the side by a truck driven by the insured driver. One of the passengers in the plaintiff's vehicle succumbed to her injuries and the plaintiff himself suffered serious injuries. At the time the plaintiff was 60 years of age.

2.            Regarding the issue of liability, the parties settled the issue on 2 September 2016. In terms of the settlement the defendant is liable to compensate the plaintiff for 60% of his proven or agreed damages. The issue before this court relates to the quantum of the plaintiff's claim.

3.            In short, the plaintiff sustained a type III body fracture of the C2 vertebra in the neck, a chest injury in the form of rib fractures and a right hip injury.  The plaintiff was hospitalised for some time during which he was, inter alia, immobilised due to the neck injury. After his discharge the plaintiff continued to experience pain in his neck and also a weakness in the right hip and right leg to the extent that he could not lift his right foot properly off the ground. The plaintiff also presented with rather serious psychological and emotional problems subsequent to the accident.

4.            Due to the weakness in his right hip and right leg, the plaintiff suffered a fall on 6 February 2013. He fell on his right side and was hospitalised. It was established that he had suffered a hip fracture and a pelvic fracture. This resulted, apart from other treatments, in a total hip replacement for the plaintiff. The plaintiff never fully recovered from this injury and is still walking with a crutch and experiences pain and severe weakness of his right leg. He also suffers from continuous headaches which also causes nausea and dizziness and light sensitivity.

5.            The plaintiff uses pain medication on a regular basis as well as antidepressant medication. As a result of the accident and the injuries he sustained, the plaintiff's personality changed and he became withdrawn and lost his self-confidence. He also suffers bouts of anxiety, especially when he has to travel.  The plaintiff presents with a post-dramatic stress disorder and of depression secondary to the physical effects of his injuries which impair his ability to perform and to enjoy his normal activities of daily living and life amenities. Most importantly, the plaintiff's neck is stiff and painful and he is not able to turn it properly to the right-hand side. If he tries to do so, it feels as if the neck locks and a neck pain then radiates between the shoulder blades and to the shoulders, more particularly on the right side.   He also presents with a mild instability at the C4 and C5 level with flexion.

6.            Regarding the hip injury, the plaintiff still suffers severely. His right leg and hip are weak and he still needs to walk with a crutch.  He suffers from muscle spasms and his right leg is 1 cm shorter than his left leg. This affects his gait and causes pain when he walks.  He cannot walk long distances or stand for long periods. He struggles to put on his shoes or his pants and falls a lot because of an inability to balance himself.

7.            Both parties presented the report of expert witnesses as well as joint reports of the orthopaedic surgeons, the clinical psychologists, the industrial psychologists and the occupational therapist. There was no difference of any note between the experts regarding the plaintiff's injuries, his condition and his prognosis. The orthopaedic surgeons were both of the view that apart from other medical treatment, the plaintiff will need a neck operation with the possibility of a follow-up procedure later on in his life as well as a possible revision procedure of the right hip. Plaintiff's orthopaedic surgeon is also of the view that the plaintiff would require a lower back operation in future. The experts were also in agreement that the plaintiff has suffered a total loss of earning capacity and a severe loss of enjoyment of life.

8.            I turn now to the quantum of the plaintiff's claim. In regard to future medical expenses there does not seem to be any dispute that the plaintiff is entitled to an undertaking in terms of section 17 (4) (a) of the Road Accident Fund Act, Act 56 of 1996, limited to 60%.

9.            Regarding past medical expenses the plaintiff presented a schedule and vouchers supporting the claim of R 173 126, 31. After apportionment, the amount is R 103 875, 78.  There was no rebutting evidence on the part of the defendant and in fact Mr Mogashane, who appeared on behalf of the defendant, stated that he could not disagree with the evidence presented to him.

10.          Regarding the plaintiff's loss of income the experts appearing on behalf of both parties were in agreement in respect of all the relevant facts and considerations. It is not necessary for me to refer to the relevant facts and considerations. Based on the aforesaid, actuarial calculations were made which were in accordance with the agreements between the experts and which applied the apportionment mentioned above, a contingency deduction and the cap applicable to claims of this nature.  The final amount so calculated is R548 300, 00.

11.          As far as general damages are concerned I was referred to decisions of comparable cases. With reference to the facts in the present case it was finally submitted on behalf of the plaintiff that an amount of R600 000,00 should be awarded. On behalf of the defendant it was submitted that a lower amount should be awarded. Eventually counsel on behalf of the plaintiff accepted the amount of R550 000,00 to be a fair amount to be awarded under this heading. I agree with the submission by advocate van Rooyen.  Having regard to the apportionment, the award in respect of general damages should be the amount of R 330 000, 00.

12.          As far as costs are concerned, there is no reason why costs should not follow the event. The parties were in agreement regarding the costs in respect of the experts employed by the plaintiff. It should also be mentioned that this matter had been on the roll on 21 November 2019 but had been crowded out. At the time the costs relating to that appearance were ordered to be costs in the cause. I shall also refer to those costs in the order I propose to make.

13.          Lastly I wish to thank the legal representatives for their assistance in making this trial by way of video conferencing, a success.

14.           In the result, the following order is made:

1.          It is recorded that the Defendant is liable for 60% of the Plaintiff’s proven / agreed damages.

2.          The Defendant is ordered to pay to the plaintiff an amount of R982 175.78 (NINE HUNDRED EIGHTY TWO THOUSAND ONE HUNDRED SEVENTY FIVE RAND AND SEVENTY EIGHT CENTS) which amount shall be paid within 14 days to the credit of the trust account of the Plaintiff’s Attorneys of record, Podbielski Mhlambi, Carletonville, whose trust account details are as follows:

Nedbank name        :           NEDBANK – WESTERN GAUTENG

Account type           :          TRUST ACCOUNT

Branch code            :           187 505

Account no              :           [….]

Reference no           :           KD0454

 

The above amount is made up as follows: 

General Damages:                                     R 330 000.00

Loss of Income:                                         R 548 300.00

Past Medical Expenses:                             R 103 875.78

 

3.          The Defendant is ordered to pay the Plaintiff’s costs of suit, inclusive of the costs of 21 November 2019, 5 & 6 May 2020, of Instructing Attorneys and Correspondent Attorneys to date on the Party-and-Party High Court Scale, subject to the discretion of the Taxing Master which costs include (but not be limited to):

3.1       The costs of the experts to conduct examinations and preparing the medico-legal reports, addendum reports (where applicable), RAF4 reports (where applicable), Joint Minutes (where applicable):

3.1.1    Dr A van den Bout (Medico-Legal Expert) and RAF4;

3.1.2    Dr L Berkowitz (Plastic and Reconstructive Surgeon) and RAF4;

3.1.3    Dr L Fine (Psychiatrist);

3.1.4    Ms G Vlok (Occupational Therapist);

3.1.5    Dr H Swanepoel (Clinical Psychologist);

3.1.6    Mr B Moodie (Industrial Psychologist) – also for reservation and appearance on 21 November 2019;

3.1.7    Munro Actuaries (Actuary).

 

3.2         The cost of senior-junior counsel, as well as costs attending upon pre-trial conferences;

3.3         The reasonable taxable costs of transportation calculated at the AA rate and accommodation of the Plaintiff to the medico-legal examinations for both the Plaintiff and Defendant;

3.4         The cost of preparation of three bundles as per the Gauteng High Court Directives and as agreed upon in the Pre-Trial Minutes;

3.5         The cost of the instructing and correspondent attorneys, which includes reasonable travelling costs at the AA rate, costs of preparing for Pre-Trial Conferences, and costs for actual attendances to Pre-Trial Conferences, Pre-Trail Agenda’s and Pre-Trial Minutes, all costs for preparing for trial and costs involved in having the matter finalized on 6 May 2020.

 

4.            The Defendant is ordered to furnish the Plaintiff with an Undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act, No 56 of 1996, to compensate Plaintiff for 60% of the cost of 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 as a result of an accident that occurred on 13 August 2011.

5.            No interest will be payable on the capital sum, provided payment is made 14 days after the Court Order.  Should payment not be made timeously, the Defendant will pay interest at the applicable mora interest rate per annum from due date to date of payment.

6.            The party and party costs are payable within 14 days after receipt by the Defendant’s attorneys of the stamped allocator, thereafter interest will be charged at the applicable mora interest rate per annum from date of the stamped allocator to date of payment.

7.            There is no Contingency Fees Agreement.

 

C.P.  RABIE

JUDGE OF THE HIGH COURT

6 May 2020

 

For Plaintiff:                  Adv M van Rooyen 082 897 1260

·         Instructed by Kritzinger Attorneys

 

For Defendant: Mr. MT Mogashane 076 7222 810

·         Molaba Attorneys

 

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