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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)           NOT REPORTABLE

(2)           OF INTEREST TO OTHER JUDGES

(3)           REVISED.

CASE NO.: 16898/2013

17/5/2018

 

In the matter between:

 

MKHABELA SIMANGELE EMMAH                                                                          Plaintiff

 

And

 

ROAD ACCIDENT FUND                                                                                              Defendant

JUDGMENT

SARDIWALLA J:

[1]         The plaintiff claims damages from the defendant as the statutory insurer in terms of the Road Accident Fund Act 56 of 1996 ("the Act"), arising from the bodily injuries she sustained in a motor collision that occurred on 17 January 2009 at approximately 18h45, at Nkomeni Main Road. At the time of the collision the plaintiff was a pedestrian and the motor vehicle described as a White Toyota Corolla with unknown registration number was being driven by an unidentified driver.

[2]        It is common cause that the plaintiff sustained the following injuries as a result of the accident:

2.1             Tibial plateau fracture

2.2             Head injury

2.3             Loss of smell (serious long term impairment)

2.4             Facial scars (permanent serious disfigurement)

[3]         The matter proceeded before me on the issues of liability of the defendant and general damages. The parties have not settled the plaintiffs claim in respect of past and future medical expenses or general damages.

[4]         The defendant claims that a settlement of any claim is conditional upon the plaintiff successfully establishing the liability and/or negligence against the defendant. The defendant in its special plea submitted that the plaintiff has submitted a Serious Injury Assessment Report, but that the defendant has not taken a decision in terms of Regulation 3(3) (c) and (d) regarding the seriousness of the injury and accordingly is not obliged to compensate the plaintiff for pecuniary loss alleged or at all. It further submitted that this Honourable Court does not have the jurisdiction to determine whether the plaintiffs injury is a serious injury and therefore does not have the jurisdiction to make a finding regarding whether the plaintiff is entitled to claim pecuniary loss against the defendant, as contemplated in Section 17 (1) (b) (1A) and Regulation 3 of the Road Accident Fund Act 19 of 2005.

[5]         The evidence that was placed before me consists of the medico-legal report of Dr lmran Khan an orthopaedic surgeon as an expert witness of the plaintiff, the MMF1 claim form, and the evidence of the plaintiff, who was the sole witness in her case. The defendant did not call any witness to testify on its behalf.

 

THE PLAINTIFF'S EVIDENCE

[6]         The plaintiff is currently 39 years old. She was 30 at the time of the collision. At the time of the collision she was employed by the South African Police Services as a police officer. On the day of the collision she was directing traffic in the scope of her duties on Nkomeni Main Road. At approximately 18h45 she was standing on the barrier line on the road directing traffic when the accident occurred. As a consequence of the collision she has suffered bodily injuries as indicated above. No further details or explanations have been given relating the occurrence of the accident.

[7]         No evidence or affidavits of any witnesses has been presented to this Court.

[8]         The expert in his medico-legal report testified that the patient was taken by ambulance to the Nelspruit Medi Clinic, X-rays were requested and scalp laceration was managed with sutures and also to the forehand. She was taken to theatre for the fracture on the left leg which was internally treated and she was placed in a plaster cast. Furthermore she received treatment by a physiotherapist for rehabilitation and was administered pain medication. He testified that patient complained of pain in the left leg, she was unable to walk long distances, had cramps and leg swelling. Furthermore he testified that the general condition of the patient was fine, there is no length discrepancy and walking gait is normal.

[9]         He further testified that during the musculo-skeletal examination the patient's cervical spine had no deformity and the range of movements was normal and pain free. In terms of the patient's knee and leg there was a visible surgical scar anterior to the left knew and proximal leg. There is a moderate tenderness over the proximal leg but no swelling. The range of movements was fine. The X-rays for the cervical spine also presented as normal. The x-rays confirmed the tibial plateau fracture involving both condyles, that reduction was good and there is no step in articular surface.

[10]      His diagnosis was as follows:

10.1      Whiplash injury to cervical spine.

10.2      Head injury with scalp laceration.

10.3      Left tibial plateau fracture - healed.

10.4      Anterior cruciate laxity left knee grade three.

 

[11]        Dr lmran Khan testified that the patient returned to work after a period of one year after the collision. Her hobbies before the collision were watching television and going to church and they remained the same after the collision. He further states that the effect on her occupation is such that she struggles to sit or stand for protracted periods of time. There is a 10 percent poor effect due to left knee injury, that there is a good possibility that her condition will deteriorate further and therefore a final occupational assessment is required. His overall prognosis is that the plaintiff will develop post trauma osteoarthritis in 10 years' time if not earlier and will require further treatment in the form of medication, physiotherapy, further consultations with an orthopaedic surgeon for a minimum of 10 years and further surgical management in the form of a possible knee replacement, reconstruction of left anterior cruciate laxity ligament and removal of left knee implants. That as she has 17 percent whole person incapacity she qualifies for a narrative test.

 

ANALYSIS OF THE EVIDENCE

[12]        That the plaintiff was working in the scope of her duties directing traffic when the collision occurred.

[13]        The issue that has to be determined is whether the insured driver negligently caused the collision, and whether the plaintiff was also negligent and if so, whether such negligence was a contributory cause of the collision.

[14]        I am however, unable determine the issue negligence of the parties to the collision from the papers alone. It is common cause that the plaintiff was directing traffic in the scope of her duties and was standing on the barrier line at the time of the collision. There are no other facts before this Court and unfortunately the defendant has not presented the version of the insured driver. All that is suggested by the plaintiff was that the insured driver could not or did not avoid the collision and that the defendant was solely to blame therefore.

[15]        It is trite law that a motorist must keep a diligent and proper lookout for traffic and pedestrians and not ignore vehicles or pedestrians who are acting in a negligent manner.

[16]        The position was aptly explained by Milne JP in Cockran v Durban City Council 1965 (1) SA 795 (NPD), at 802A-B where he stated that if a motorist enters the intersection immediately the lights become green, he may not ignore the possibility of other traffic, and by logical extension pedestrians, who entered the intersection whilst the traffic light was green for them and before it changed to red. See also Netherlands Insurance Co of South Africa Ltd v Brummer 1978 (4) SA 824 (A) at 833C-F; Walton v Rondalia Assurance Corp of SA Ltd 1972 (2) SA 777 at 780A-B.

[17]        The defendant in its special plea denies that the insured driver was negligent or that in the event the insured driver is found to have been negligent, that such negligence was the cause of the collision. In this case we are dealing with a situation where the plaintiff was conducting duties in the course and scope of her employment and was standing on the barrier line and there is no evidence to the contrary from the insured driver of his version. The plaintiff however has provided a medical report to substantiate her claim against the defendant. The principle in the above case therefore cannot be determined by this Court and the matter is referred to the trial Court for oral evidence, in which forum in would be better suitable to determine the issues and to make an order that is just and fair.

[18]        In the light of the above, the issue of costs cannot be determined until the trial Court makes a finding.

[19]        I accordingly make an order as follows:

1.      The issue of costs of today are reserved and are to be determined at the trial of the matter on Quantum.

 

 

 

SARDIWALLA J

JUDGE OF THE GAUTENG DIVISION, PRETORIA

 

 

APPEARANCES

Date of hearing                              :          27 February 2018

Date of judgment                           :          17 May 2018

 

Plaintiffs Advocate                        :          ADV.: G VAN DEN BERG

Plaintiffs Attorneys                        :          Ramapuputla Attorneys

 

Defendant's Advocate                    :          MR. B W BAHLMANN

Defendant's Attorneys                   :          Fourie Fismer INC

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