AA Mutual Insurance Association Ltd v Maqula

• Jurisdiction: South Africa
• Judge: Wessels JA, Muller JA, Kotzé JA, Diemont JA and Joubert JA
• Judgment Date: 01 December 1977
• Hearing Date: 14 November 1977
• Court: Appellate Division

Joubert, J.A.:

On Sunday 10 June 1973 at approximately 9.30 p.m. in Seyisi F Street, Kwazakele, Port Elizabeth, a motor car driven by one Wellington Ncwadi knocked down the respondent (a Bantu male of 45 years of age) who was a pedestrian, causing him serious bodily injuries. The respondent, to whom I will refer as the plaintiff, claimed in the South Eastern Cape Local Division compensation for such personal injuries from the appellant G company, to which I will refer as the defendant, as the insurer of the motor car in terms of the Compulsory Motor Vehicle Insurance Act, 56 of 1972. KANNEMEYER, J., in the Court a quo awarded plaintiff an amount of R61 986 made up as follows:

(a) General damages	R11 000
(b) Past and future medical expenses	2 470
(c) Past and future loss of earnings	48 516

The appeal is, firstly, against the finding by the Court a quo that the accident was caused by the sole negligence of the driver Ncwadi and, secondly, against the quantum of damages awarded.

The plaintiff and Ncwadi were the only witnesses who testified as to how the accident occurred. The plaintiff's version was a simple one. At the northern end of Seyisi Street he alighted from a bus, walked around its front and crossed "the square", i.e. the semi-circular area where the buses

Joubert JA

normally turn in order to proceed southwards along Seyisi Street on their way back to Port Elizabeth. He then proceeded to walk southwards on the eastern side of Seyisi Street towards his home. In order to reach his home A he had after some distance to turn off into a lane on his left. He was walking on the gravel verge which served as a sidewalk and which was demarcated from the tarred portion of the street by a line of concrete kerb stones but the latter were flush with the ground level so that there was no ridge or gutter between the tarred surface and the gravel verge. There were street lights on his left but the street was not well B illuminated. On the opposite side of the street, i.e. on its western side, there were no street lights. He was walking about one pace from the edge of the tarred surface when the accident occurred. He was wearing a brown sports coat, a yellow shirt and black striped trousers. There were some pedestrians ahead of him and some behind him, walking southwards in the same direction. He could see on the tarred surface the lights of a motor C vehicle approaching him from behind. Suddenly he heard a woman behind him shout "what is wrong with this car". As he turned towards his right to look back the insured vehicle which was travelling in the same direction in which he was walking collided with him and knocked him down. As a D result of the impact he fell about two paces further to the south but he still landed on the gravel verge.

Ncwadi's version was that he was driving the insured vehicle at a speed of about 30 m.p.h. from north to south on his correct side of Seyisi Street. His dimmed headlights illuminated the street ahead of him and to his right E he could see the edge of the tar and the gravel verge on the western side of the street. There was no approaching traffic in the street. His was the only vehicle on the street at the time. In his evidence-in-chief he said that he saw the plaintiff coming down a bank on the western side of the street. The plaintiff ran onto the street from its western side. He applied his brakes but was unable to avoid the accident. Under cross-examination he stated that he first saw the plaintiff when the F latter was passing in front of his vehicle. He admitted that he had never seen the plaintiff on the bank or on the western gravel verge. He agreed that, had he noticed the plaintiff coming down the bank, which he could have done had he been keeping a proper lookout, he would have applied his brakes much sooner and no accident would have occurred. The plaintiff was G hit by his left headlight and his front bumper. Ncwadi testified that the point of impact was 1,4 metres from the eastern side of the street and the plaintiff fell about 8 feet 5 inches south of the point of impact on the tarred surface of the street.

It was common cause that the street was 6,3 metres wide at the scene of the accident. On Ncwadi's version the plaintiff had to cross 4,9 metres H from the western side of the street before he was in front of the insured vehicle.

The Court a quo on carefully evaluating the diametrically opposed versions of the plaintiff and Ncwadi and on weighing up all the probabilities of the case favoured the plaintiff's version for sufficient and convincing reasons. I am unpersuaded that the Court a quo erred or misdirected itself in coming to this conclusion. In my view it is clear from Ncwadi's own evidence that he was negligent in that he did not keep a proper look-out in the circumstances. Nor am I persuaded that the Court a quo erred or

Joubert JA

misdirected itself in finding that Ncwadi's negligence was the sole cause of the accident. Certainly it was not shown that the plaintiff was negligent. It follows therefore that the appeal on the merits must fail.

I turn now to deal with the issue of the damages. The correctness of the A award of R2 470 in respect of past and future medical expenses was not challenged by counsel for the appellant company. The appeal was accordingly directed at the award of R11 000 in respect of general damages and the award of R48 516 in regard to past and future loss of earnings.

It is settled law that a trial Court has a wide discretion to award what B it in the particular circumstances considers to be a fair and adequate compensation to the injured party for his bodily injuries and their sequelae. It follows that this Court will not, in the absence of any misdirection or irregularity, interfere with a trial Court's award of damages unless there is a substantial variation or a striking disparity C between the trial Court's award and what this Court considers ought to have been awarded, or unless this Court thinks that no sound basis exists for the award made by the trial Court. Sandier v Wholesale Coal Suppliers Ltd., 1941 AD 194 at pp. 199 - 200; Parity Insurance Co. Ltd. v Van den Bergh, 1966 (4) SA 463 (AD) at pp. 478 in fine -479A; Protea D Assurance Co. Ltd. v Lamb, 1971 (1) SA 530 (AD) at p. 534 in fine -535A.

It appears from the medical evidence which was accepted by the Court a quo that the plaintiff was fully conscious on being admitted on 10 June 1973 to the Livingstone Hospital in Port Elizabeth. The nature of his injuries and the consequences thereof appear from the following summary of the medical evidence in the judgment of the Court a quo, viz.

E "Mr. Forgus, the principal specialist orthopaedic surgeon at the Livingstone Hospital, gave evidence concerning the plaintiff's injuries. Apart from superficial abrasions the plaintiff suffered a fracture of the upper left tibia and segmented compound fracture of the right tibia. The whole right leg was put into a plaster cast after the wound had been sutured. A Thomas' splint was applied to the left leg and this leg had traction applied.

On 15 June 1973 a Kunscher nail was inserted into the left femur under F general anaesthetic. On 7 July the wound...