Pumlani v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Greenland AJ
• Judgment Date: 12 May 2008
• Docket Number: 979/2006
• Court: Transkei Division
• Hearing Date: 08 May 2008
• Citation: 2008 JDR 0556 (Tk)

Greenland AJ:

Background

[1] On 15 July 2004 at approximately 20h00 hours the plaintiff was hit by a motor vehicle on the main road between Mthatha and Ngcobo. In consequence thereof he commenced an action against the defendant by summons sued out on 24 August 2006.

Merits

[2] On 26 March 2007 the High Court, Mthatha, handed down the following order:-

"IT IS ORDERED BY CONSENT THAT:

1.

The Defendant concedes 70% liability of the injuries sustained by the Plaintiff in a motor vehicle accident that took place on 15 March 2004.

2008 JDR 0556 p2

Greenland AJ

2.

That those injuries are still to be quantified by the Plaintiff.

3.

The Defendant shall pay costs of suit to date."

Despite the rather novel wording of this order the parties are agreed that it constitutes a judgement on the merits in favour of the plaintiff with an apportionment of 30% to be applied against him in respect of the quantum of any damages he is able to prove before this Court.

Quantum

[3] This court in therefore concerned only with the issue of quantum. As the parties were unable to agree the matter was run with the plaintiff calling three expert witnesses. The defendant confined itself to succinctly taking issue with the witnesses only in respect of the approach to be adopted as regards quantum.

It is agreed that the issue distils done to the following heads of claim:-

a)

general damages claimed at R350,000 with defendant offering R150,000

b)

a certificate of undertaking to be furnished by defendant to fund all reasonably and necessarily incurred future medical expenses arising out of the injuries sustained in the motor vehicle accident which certificate defendant is tendering

c)

payment in respect of loss of income (future in particular) on which issue the parties are in disagreement.)

2008 JDR 0556 p3

Greenland AJ

•

Memory. That her has a permanently impaired memory is confirmed.

•

Personality changes. An inclination towards inexplicable aggression and anger has been noticed.

•

Miscellaneous. He has problems as regards maintaining concentration, translating his thoughts into speech and maintaining meaningful relationships as a love affair.

•

Executive function. As a result of the above the plaintiff is significantly handicapped in his ability to plan and execute tasks with an acceptable degree of proficiency.

All in all the position is that although he has recovered relatively well and presents as a seemingly normal and affable person he has permanent gabs in his functionality which reduces his overall efficiencies and effectiveness as a human being.

This profile is put into perspective in that since the accident the plaintiff has been able to work in his occupation as a construction site labourer. However such employment was not won in the open marker but provided by a relative. It is the opinion of Mr Ian Meyer, Clinical Psychologist, that this scenario will typify his future working life, i.e,. he will not only secure employment in a sympathetic informal labour sector. With that assessment defendant is not in substantive disagreement. Also accepted is that whereas he is able to interact normally with other human beings his facility for full social and personal engagement is significantly curtailed.

2008 JDR 0556 p4

Greenland AJ

Judicial Approach

[5] It is well to be reminded of certain fundamentals as regards the approach to be adopted in deciding the level of awards.

a) The plaintiff is required to prove his damages. He is visited with an onus of establishing what the offending driver would be required to pay in the absence of the Road Accident Fund (RAF). This is because the RAF is liable only for what such driver is liable for at common law, no more, no less.

b) Stating this matter of fact and law has the sobering effect of militating against the RAF being subconsciously perceived as a cash rich insurer with infinite resources; a perception commonly referred to in the insurance sector as "deep pocket syndrome". Two important observations must be made as regards the RAF. Firstly it is funded by way of fuel levy to...