Ntsontsoyi v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Pakade J
• Judgment Date: 29 June 2008
• Citation: 2008 JDR 0677 (Tk)
• Docket Number: 978/06
• Court: Transkei Division

Pakade J:

BACKGROUND:

[1] The plaintiff is a 24 years old young man who lives with a single parent and his four siblings in an informal settlement known as Joe Slovo Park in the outskirts of the city of Mthatha. On 13 May 2004 he was knocked down by an unidentified motor vehicle on the public road between Mthatha and Engcobo, which sped off from the scene after the collision.

[2] As a result of the collision aforesaid, the plaintiff sustained a fracture of the right femur; fracture of the right tibia and fibula and laceration on the chin. He was taken by ambulance to Mthatha General Hospital and then to Bedford Orthopaedic Hospital for treatment.

2008 JDR 0677 p2

Pakade J

[3] The plaintiff has now instituted an action against the defendant under the Road Accident Fund Act, Act 56 of 1996 (the Act) alleging negligence on the part of the driver of the unidentified motor vehicle which collided with him and claiming damages he suffered from the collision.

[4] When the matter came before me for trial on 23July 2007, Counsel for the plaintiff, Mr Dutton and an Attorney for the defendant, Mr Mnqandi agreed that liability be separated from quantum of damages and that I should make an order to that effect in terms of Rule 33(4) of the Uniform Rules of Court. I accordingly made the order separating liability from quantum of damages as requested by them. Thereafter, in dealing with liability, I was presented with an order consented to by both legal representatives with a request that I should make it an order of the Court. Therein the parties had consented to an order declaring the defendant 100% liable for the damages suffered by the plaintiff. Indeed I made it an order of the Court. The issue of quantum had to stand over for determination at a later stage.

[6] The trial on quantum of damages commenced before me on 22 April 2008 and lasted for three days.

THE ISSUES

[7] The issues had by this time been narrowed down into one, namely, whether the plaintiff suffered past and future loss of income as a result of the accident and if so what amount to be awarded to him as compensation. The general damages had been settled by the parties and the defendant had agreed to pay a sum of one hundred and fifty thousand

2008 JDR 0677 p3

Pakade J

rand to the plaintiff in respect thereof. The defendant had also undertaken to issue a certificate to the plaintiff in terms of section 17(4)(a) of the Road Accident Fund Act 1996 guaranteeing liability for the future medical treatment and for the costs reasonably and necessarily incurred and for services rendered to the plaintiff in respect thereof for injuries arising from the collision with the motor vehicle which is the subject of this action.

[8] The applicant's claim is created by statute, the Road Accident Fund Act, 1996. In terms of the Act, anyone who is injured in consequence of the negligent driving of a motor vehicle, be it identified or not, can claim compensation for any loss suffered (see also Engelbrecht v Road Accident Fund 2007 (6) SA 96 (CC)).

[9] A said in paragraph [7] above, the main area of dispute between the parties is whether or not the plaintiff suffered a loss of earning capacity with resultant loss of earnings in the future, or the potential of such loss and, if so ,what monetary value ought to be attached to this loss. It is by now well settled that a court faced with this task has two options; a so called lump-sum award or an award based on mathematical and actuarial calculations. These options are graphically illustrated in the judgment of Southern Insurance Association v Bailey...