Kojana v The Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: IT Stretch J
• Judgment Date: 08 February 2022
• Court: East London Circuit Local Division
• Hearing Date: 25 November 2021
• Docket Number: EL482/2021

Stretch J:

[1]

This matter was set down before me on 25 November 2021 on the default judgment roll. When the matter was first called I was requested to stand it down as the plaintiff's counsel was not in court. When the matter resumed I recorded that there was no appearance for the defendant. Thereafter the plaintiff's counsel advised me that he would be calling the plaintiff in pursuit of general damages for injuries which she had suffered in a motor vehicle accident.

2022 JDR 0348 p2

Stretch J

[2]

The plaintiff's evidence in chief was brief. She said that on 3 July 2018 she was travelling on the N2 motorway between Cambridge and Hemingways Hotel. She was involved in an accident and taken to hospital because she had sustained injuries. She described the sequelae of the accident as follows:

'I broke my upper right thigh and my lower thigh and I fractured my left ankle. And I got an injury on the right-hand side of my head. … I had an operation on my right thigh because it was broken. … I was hospitalised for two weeks. … I work at the hotel so most of the day I sit so my left ankle gets swollen and it gets difficult to walk after a long shift. And I can't sit for long periods of time. And there are certain duties that I can no longer do like walkabouts because I can't walk long distances. And even when I sleep at night I need to take pain tablets because the pain is constantly there on my left ankle. … I was 21 weeks pregnant. … It affected me because I thought I was going to lose my baby. And I was not aware of how I was supposed to take care of a baby because I was on crutches when I gave birth. And I could not walk by myself. … .. There were duties that were taken away from me which is the walkabouts. … So now I do the office work and sometimes I need to stand at reception and work at reception because I have no disability that states that I am disabled. I have to work because – and then that's where the pain starts after the shift.'

[3]

It was only thereafter that counsel asked her how the accident came about. This account too, was brief. She said the following:

'I was driving to work and a car in from of me with a trailer, a bakkie, made a U-turn without indicating on the freeway, on the N2. That's how the accident happened.'

[4]

As I result of questioning from the court it transpired that she had been driving in the fast lane behind the insured vehicle, which was towing a trailer. She went on to say the following:

2022 JDR 0348 p3

Stretch J

'Yes, and then the vehicle suddenly made a U-turn. … To its right. The fast lane is on the right-hand side so it made a U-turn in the right patch where there's grass. And then it left the trailer in the road. … And then I collided into the trailer. … The trailer was left on the road yes.'

[5]

I asked the plaintiff whether she could not have avoided the collision by veering towards her left. She said that she had tried. She was not examined in chief any further. She was merely asked how she felt about the conduct of the insured driver, and how much money she was claiming. I was accordingly constrained to question her further to obtain clarification. She said that the insured driver admitted that he was in the wrong, that the foetus she was carrying was not injured, and that her income and her earning potential were not affected as a result of the injuries which she had sustained, until the intervention of the Covid 19 pandemic, when her working hours were reduced because of the duties she was no longer able to perform.

[6]

Her legal representative thereafter briefly submitted that the quantum of her claim for general damages was reasonable and that he was relying on the principle set forth in the unreported judgment of Mbolo v Road Accident Fund CA 283/2011, but that he had not updated the damages. In response to this court's questions he stated that the general damages in that case were less than R500 000,00. He did not have a copy of the unreported judgment with him, but provided the citation as 'ZAECGHC 24, 9th June 2011,' stating that the plaintiff in that matter also suffered an ankle injury. In response to a direct...