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IN THE EASTERN CAPE HIGH COURT, BHISHO

 

CASE NO:  611/09

Date heard:  15 November 2010

Date delivered:  23 November 2010

In the matter between:

 

ZUZILE ALFRED MAKEKE	Plaintiff
And
ROAD ACCIDENT FUND	Defendant

 

JUDGMENT

 

Y EBRAHIM J:

 

Introduction

 

[1]      The plaintiff claims damages from the defendant in respect of injuries he sustained in a motor vehicle collision on 15 May 2007.

 

[2]      On 12 November 2010 the merits were settled in favour of the plaintiff and the Court issued an order that the defendant was liable to compensate the plaintiff for the damages suffered by him as a result of his injuries.  The issue of quantum was then postponed to 16 November 2010 for determination.

 

The plaintiff’s case

 

[3]      At the commencement of the trial Mr Louw, who appeared for the plaintiff, informed the Court that the defendant accepted as correct the medico legal report prepared by Dr P A Olivier and that it was agreed it be admitted in evidence.  The defendant also accepted as correct the information provided to, and received by, Dr Olivier including the x ray examinations and the opinions expressed by him.  This was confirmed by Mr Mafunda, who appeared for the defendant.

 

[4]      Mr Louw thereupon moved for an amendment to the plaintiff’s Particulars of Claim to include the following paragraph 7.4:

 

‘7.4     Facial Injuries.’

The Defendant did not object to the amendment and it was granted.

 

[5]      The plaintiff, Mr Zuzile Alfred Makeke, testified that he was now 70 years old and no longer worked.  He was rendered unconscious in the motor vehicle accident and on regaining consciousness in the hospital experienced pain over his entire body and the left side of his face.  The teeth in his lower jaw were loose and he could not bite properly and could only chew soft food.  He lost an upper front tooth and two in the lower right jaw.  When it was cold he experienced pain.  He also sustained injuries to his neck, shoulder and wrist.  Previously he had been an active gardener and could dig with a spade and chop poles for a fence and also attended to the maintenance of his house but could no longer carry out these tasks.  His life had been adversely affected and he was no longer as physically active as before.  He could not use his arms and now remained at home.

 

[6]      Mr Mafunda did not cross examine the plaintiff and the plaintiff closed his case.

 

Quantum of general damages

 

[7]      In his submissions in regard to general damages, Mr Louw relied on three cases in which, he said, the claimants sustained injuries of a similar nature.  In the matter of Mlatsheni v RAF[1] the claimant sustained an injury to his shoulder and the Court awarded R140 000,00 in 2007, which presently was equivalent to R178 000,00 when adjusted for inflation.  In Mzendana v RAF[2] the claimant sustained injuries to his hip, knee and ankle and was awarded an amount of R350 000,00, presently equivalent to R447 153,00.  In Vukubi v RAF[3] the injury was to the claimant’s knee and he was awarded an amount of R300 000,00 in 2008, presently equivalent to R383 000,00.  Mr Louw stressed that the plaintiff’s disabilities were irreversible and an appropriate award would be the amount of R400 000,00. 

 

[8]      Mr Mafunda’s only submission was that a yardstick to determine the plaintiff’s general damages was the award of R8 000,00 in 1972, now equivalent to  R334 000,00, in the matter of Saayman v The Commercial Union Insurance Co of S A Ltd,[4] where the claimant sustained injuries to his shoulder, upper arm, forearm, wrist and back.  On the basis of that decision an appropriate amount for general damages was R350 000,00.

 

[9]      In reply, Mr Louw pointed out that the amount of R8 000.00 awarded in 1973 had to be increased in line with what the Court said in Wright v Multilateral Vehicle Accident Fund[5] and which the Supreme Court of Appeal endorsed in RAF v Marumo[6].

 

[10]       I have taken account of the awards made in the cases referred to by Mr Louw and Mr Mafunda.  The nature and extent of the plaintiff’s injuries and the sequelae thereof were not challenged by the defendant.  At the date of the accident the plaintiff was almost 67 years old.  Prior thereto he was quite capable of undertaking physical work such as gardening and maintenance of his residence.  His injuries now prevented him from doing this. On considering his injuries in relation to those of the claimants in the cases I have been referred to, I am of the view that a just amount for general damages is the sum of R380 000,00.

 

Costs

 

[11]       It is trite that costs will follow the result in the absence of cogent reasons to order otherwise.  Mr Mafunda has not disputed that the plaintiff is entitled to the costs of the action and I see no reason not to grant an order for costs in favour of the plaintiff.

 

Order

 

[12]       In the result, there is an order in the following terms:

 

(a)       The defendant shall pay to the plaintiff the sum of R380 000,00 as and for damages;

 

(b)       Interest on the aforesaid sum of R380 000,00 at the legal rate of interest at 15,5% (per cent) from a date fourteen (14) days after this order;

 

(c)        The defendant shall give an undertaking in terms of Section 17 (4) (a) of the Road Accident Fund Act, 56 of 1996, for the costs of the future accommodation of the plaintiff in a hospital or nursing home, or for the treatment of or the rendering of a service to him or supplying of goods to him, arising out of the injuries sustained by him in the motor collision;

 

(d)       The defendant shall pay the plaintiff’s party/party costs on the High Court Scale, which costs shall include the following:

 

(i)         The inspection in loco;

 

(ii)        The costs of photographs;

 

(iii)      The qualifying expenses, for the expert witness, Dr P A Olivier, if any, as may be agreed upon between the parties or as may be directed by the Taxing Master;

 

(e)       Interest on the taxed costs at the legal rate of interest at 15,5% (per cent) from a date fourteen (14) days after allocator by the Taxing Master.

 

Y EBRAHIM

JUDGE OF THE HIGH COURT

23 November 2010

 

Counsel for the Plaintiff:	S S W Louw
Attorneys for the Plaintiff:	Niehaus McMahon Attorneys
	EAST LONDON
Attorney for the Defendant:	Mr V Mafunda
Attorneys for the Defendant:	Potelwa & Co
	KING WILLIAM’S TOWN

_{MAKEKE v RAF.CVJ}

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