Sinkampula v Road Accident Fund
| Jurisdiction | South Africa |
| Judge | Luthuli, AJ |
| Judgment Date | 22 March 2007 |
| Citation | 2007 JDR 0287 (Tk) |
| Docket Number | 280/06 |
| Court | Transkei Division |
Luthuli AJ:
The plaintiff is a 37 year old male. He claims damages for personal injuries sustained by him when a motor vehicle collided with him 27 June 2004 on a public road near Bhodini Administrative Area, Engcobo.
On 13 September 2006 this Court ordered that:
the issues of liability and quantum be separated;
the Defendant pay 80% of the Plaintiff's proved or agreed damages;
the action is postponed sine die for the determination of the quantum of the Plaintiff's damages;
the Defendant pay the Plaintiff's costs of suit to date of this order."
2007 JDR 0287 p2
Luthuli AJ
The issue to be decided by this court is that of quantum of the plaintiff's damages. The particulars of the damages claimed by the plaintiff are contained in paragraph 6 of the particulars of claim. The plaintiff has now abandoned the claim for past hospital expenses under paragraph 6.1. The parties have agreed that in respect of the claim for estimated future medical expenses, care giver, occupational therapy, assistive devices, physiotherapy and rehabilitation, prosthesis and related expenses under paragraph 6.2 of the particulars of claim in the sum of R264 424-00, the defendant will furnish a certificate of undertaking to pay those expenses, subject to a 80/20 apportionment.
The claims for general damages and past and future loss of income (paragraphs 6.3 and 6.4 of the particulars of claim) remain in dispute. The quantum of damages suffered by the plaintiff in respect of those two claims has to be decided in this case.
The plaintiffs evidence was brief and it related to his employment history. He was employed by Imperial Cold Storage from 1989 to 2003 when he was retrenched. He worked as a loader. Thereafter he worked temporarily for a bus company for about 6 months and for Mr Bread for about 1 year. He was unemployed when the accident happened in 2004. He told Mr de Kock, an Industrial Psychologist, about his employment history.
Mr Frederick Gideon de Kock, an Industrial Psychologist, prepared a report on the plaintiff on 27 October 2006. According to his report, the following documents were made available to him:
2007 JDR 0287 p3
Luthuli AJ
Medico-legal report from Dr Basil L. Mackenzie, Orthopaedic Surgeon - dated 14 June 2006.
Radiological report from Dr Brian Erasmus - dated 14 June 2006.
Medico-legal report from Ms Jane Bainbridge, Occupational Therapist - dated 8 June 2006.
The plaintiff started working as a loader at Imperial Cold Storage in Cape Town in 1989. In 1991 he was hit by a passing train whilst helping another passenger at a railway station near Salt River. He sustained a fracture of his right femur and was off-sick for four months. Following his discharge from hospital he went back to Imperial Cold Storage and continued working as a loader. He remained there until his retrenchment in 2003 when he was earning approximately R1600 per month. He moved to Mthatha and secured part-time work as loader/off-loader at a bakery and a bus conductor earning approximately R650 per month. At the time of the accident in 2004 he was unemployed. In 2005 he started receiving a full disability grant of R820 per month.
As a consequence of the accident in 2004 the plaintiff was treated for a fracture of his right lower limb which was surgically reduced and immobilised in plaster cast. On discharge he used crutches to mobilise. He still experiences ongoing pain in his right lower limb. His right lower limb is shortened by 3 cm and he experiences weakness, in his right leg, which causes him to be unable to walk
2007 JDR 0287 p4
Luthuli AJ
without crutches. His right ankle is deformed. According to the reports made available to Mr de Kock, the plaintiff suffered permanent damage to his right lower limb, which is now shortened and causes him to limp when walking. There is clear evidence of non-union of the tibia. Further treatment should include eradication of the bone infection and re-alignment of the tibia. Because of the accident in 1991 he is now suffering from osteoarthritis in his hip joint and will probably need a total hip replacement in future. He suffers from chronic pain in his right leg and uses analgesics frequently. His mobility is markedly impaired with altered posture and gait and demonstrates impaired balance and limited standing endurance. He is perceived by others as being "crippled". He looks depressed and presents with decreased self-esteem. He cannot continue with his pre-morbid occupation as...
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