Tsotetsi v Road Accident Fund
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mashile J |
| Judgment Date | 06 February 2023 |
| Docket Number | 2178/2020 |
| Hearing Date | 06 February 2023 |
| Court | Mpumalanga Division, Mbombela |
Mashile J:
On 26 June 2016 at approximately 20:00, the Plaintiff was the driver of motor vehicle with registration letters and number DNS 056 MP, which travelled into the direction of Barberton from Badplaas. While so travelling, he noticed an unidentified motor vehicle that occupied his lane travelling into the opposite direction. He continued driving, flashed his lights and when he noted that the driver of the unknown motor vehicle stubbornly kept to the lane of oncoming traffic, he swerved to his left-hand side. The maneuver caused motor vehicle DNS 056 MP to overturn leaving him with serious injuries.
Believing that the Defendant was as a result of the Road Accident Fund Act, 56 of 1996, as amended ("the Act") exposed to a delictual damages claim for the injuries that he had sustained, he instituted this action. The injuries suffered by the Plaintiff are recorded as a fracture of the left fibula and an 'undisplaced' fracture of the sternum. The fracture of the fibula was treated by open reduction and internal fixation while the other was treated conservatively. In consequence of these injuries and their sequelae, it is alleged that the Plaintiff will suffer future loss of earnings that will emanate from his early retirement expected at age 62 instead of 65.
This matter was initially defended. However, subsequent to delivery of its special pleas and plea on the merits, the Defendant lost interest. It would not participate in the Court processes and procedures. It never troubled itself to respond to the traditional discovery and pre-trial notices and did not bother to attend Court or appoint legal representatives to protect its rights when the matter was heard. In short, this matter was undefended. It had to proceed on both merits and quantum as there could not have been agreement to separate issues in terms of Rule 33(4) in the absence of one of the parties. Accordingly, I will first consider liability of the Defendant and depending on the outcome, will continue to determine quantum.
The main witness on the merits was the Plaintiff whose testimony was that he was
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the driver of motor vehicle DNS 056 MP travelling from Badplaas into an easterly direction towards Barberton. He was driving at about ninety Kilometres per hour in a hundred Kilometre zone. The road has two lanes, one travelling into an easterly direction and the other into a westerly direction. He saw a motor vehicle approaching from the opposite direction in his path of travel. In response, he flashed his head-lights and moved to the left of the road.
The Plaintiff stated that when moving to the left-hand side, he might have over corrected. The maneuver caused the vehicle to lose control and overturn. The driver of the unidentified motor vehicle did not stop after the capsising of the Plaintiff's motor vehicle. His version could not be corroborated as there was no other person who witnessed the occurrence of the accident. He said that there was nothing else that he could have done to avoid the accident. His testimony is in line with his sworn statement lodged together with the Road Accident Fund claim papers. The accident was reported to the police and a road traffic collision report is among the documents filed with the Defendant albeit that it was not proved in Court.
On quantum, the Plaintiff told this Court that he sustained fractures of his ribs (probably referring to the 'undisplaced' fracture of the sternum) and left ankle, which must be the fracture of the distal fibula as noted by the Orthorpaedic Surgeon, Dr Barlin. He said that he takes pain medication to cope with pains that he experiences daily. He testified further that although as a Chief Electrical Technician his work is supervisory in nature and therefore his visits to the sites required, now he hardly carries them out.
When he has to undertake those site visits, he would experience difficulties associated with pains. His pains become acute when driving, standing and walking for long distances. He is currently making arrangements to retire at age 63 instead of the normal 65. However, he also indicated that he would retire upon receiving an award of damages in this case. Apart from his experience of pain, his inspiration for continuing to work though his family that depends on his financial support. He also told this Court that he has not told his employer about his injuries and pains because he did not want to
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attract problems at work.
Dr Barlin, an Orthopaedic Surgeon, stated that he examined and assessed the Plaintiff on 6 October 2020. He went on to confirm that the Plaintiff has sustained fractures of the left distal fibula and sternum. In consequence of these injuries, the Plaintiff was admitted to hospital and received:
An open reduction and internal fixation of the left leg;
Repair of the deltoid ligament;
X-rays investigations;
Back-slab was applied on the left lower leg fracture;
Pain medication and crutches.
Dr Barlin said that on the date of examination, the Plaintiff still complained of pain in his left ankle and foot when walking, standing and bending the foot. He said that the Plaintiff also presented with itchy scars.
Dr Barlin stated that the Plaintiff's highest level of education is Grade 12, following which he studied for a Diploma in Electrical Engineering (N5 and S2). He was told that when the accident occurred, the Plaintiff was employed as a Chief Electrical Technician at Ehlanzeni District Municipality, a position that he still held when Dr Barlin conducted the medical evaluation. Dr. Barlin observed a 5cm scars over the medial malleolus, a 10cm scar over the lateral malleolus and surgical screws in the left ankle. He said that the Plaintiff presents with pain and decreased mobility in the ankle and subtalar joints.
Dr Barlin recommended that the Plaintiff must not stand or walk for prolonged periods. He advised further that if the Plaintiff is not accommodated, he will retire 2 to 3
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years earlier. He mentioned that the plates and screws in the left ankle need to be removed to improve the Plaintiff's pain prognosis. The extraction of the plates and screws may improve his pain by 50%. That said, the Plaintiff will still remain with a stiff left ankle. He stated that exacerbation of the pain and degeneration of the left ankle can be prevented by the employer of the Plaintiff accommodating him at work. He confirmed that had it not been that the Plaintiff is the sole breadwinner in his family, he probably would not be so enthused to continue working. He concluded his evidence by stating that the Plaintiff qualifies for general damages under Narrative test 5.1 and 5.2.
Mahlatse Madigoe is the Occupational Therapist for the Plaintiff. She testified that she consulted and assessed the Plaintiff on 6 October 2020 during which she noted that the Plaintiff was admitted to Medi Clinic for 4 days and attended follow-up sessions. She also observed that the Plaintiff walked with an antalgic gait due to pain on the left ankle. He evinced limitations when asked to squat, stand and kneel. The Plaintiff presented with pain in the left ankle, mood disturbances and scarring of the left ankle, she said. Her opinion is that the Plaintiff has the residual functional capacity of lower range medium manual occupations. His handling capacity has reduced because of the presence of pain on the left...
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