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MVA Fund ordered to pay paralysed woman N$4,7 m

MVA Fund ordered to pay paralysed woman N$4,7 m

THE High Court has ordered the Motor Vehicle Accident Fund of Namibia to pay more than N$4,7 million to a Windhoek woman to compensate her for injuries sustained in a car crash that left her paralysed seven years ago.

It was at an intersection of Abraham Mashego Street and Mungunda-Caesar Streets in Katutura in the early hours of December 26 1998 that a trip to visit relatives turned the Christmas of ’98 into a traumatic, life-changing event for Maria Magdalena Swartz. She, her sister and her sister’s small child were sitting in the back of a Volkswagen Caddy bakkie driven by Swartz’s husband, Harenz Swartz, as they visited relatives around Windhoek.A set of traffic lights are supposed to control the flow of traffic at that intersection.Yet at the moment shortly after midnight when the Swartz family’s vehicle crossed into the intersection from Abraham Mashego Street, a vehicle, driven by TransNamib employee Ben Serogwe, entered the same intersection from Mungunda Street.The two cars collided.In an instant, Mrs Swartz’s life was changed forever.Her neck was broken in the crash, leaving her paralysed.She was 31 at the time.Mrs Swartz sued the MVA Fund to be compensated for the financial damages she suffered, claiming mainly compensation for huge medical expenses that life as a quadriplegic would entail, and for the loss of income due to her condition.The MVA Fund agreed that she was entitled to receive compensation of N$4,713 million – but at the same time, claimed that negligence on the part of Harenz Swartz had been the sole cause of the collision, or that both he and Serogwe had been negligent and that Swartz’s negligence had contributed to the accident, with the result that he should be held responsible for at least part of the payment.In a judgement delivered in the High Court on Friday, Judge Kato van Niekerk dismissed these claims, and ordered the MVA Fund to pay Mrs Swartz N$4,713 million, plus annual interest of 20 per cent from 14 days after the date of the judgement, as well as the legal costs of the High Court case.Judge Van Niekerk presided over a 17-day-long trial about Swartz’s claim before she reserved her judgement in the matter in December 2004.At the heart of the dispute were two clashing versions of what had happened, and whether Swartz was under the influence of alcohol at the time.Mr Swartz and Serogwe both claimed that it was the other driver who had ignored a red traffic light, causing the crash.In addition, the court heard testimony from witnesses who claimed that they saw beer and liquor bottles lying in the back of the bakkie and in its cabin after the accident.Other witnesses contradicted this version of events, however.Mr Swartz admitted that he left the accident scene and that he returned only after the Police and an ambulance had been at the scene and the vehicles had been removed, but he claimed he had run to his brother’s house nearby to try to summon help because the Police and an ambulance took too long to arrive.To others observing Mr Swartz it probably looked as if he was fleeing the scene, and it was not improbable that this impression could have led to a suspicion that he was under the influence of alcohol and as a result had to make a getaway, Judge Van Niekerk commented.However, she added, “in the absence of any credible evidence that he was indeed under the influence, the probabilities favour Swartz’s version that he left the scene for an innocent purpose”.Swartz had made a good impression on her when he testified, she commented.In contrast, Serogwe’s testimony, was not satisfactory, she added, noting that there had been “countless instances where he clearly contradicted himself, adjusted his evidence to cast himself in a better light, blamed others for his mistakes, gave spurious answers and even fabricated evidence”.She remarked: “At times he seemed not to know the difference between lies and the truth.Apart from this he was distinctly hostile, arrogant and rude in the witness box while being cross-examined.”She could find no basis upon which it could be said that Harenz Swartz had been driving negligently, Judge Van Niekerk stated.Serogwe, on the other hand, admitted that he had driven at about 80 kilometres an hour in a 60 km/h zone.”He did not keep a proper look out or enter the intersection with the necessary care expected from a reasonable driver in the circumstances,” she found.”It is clear that Serogwe was negligent and caused the accident.”Mrs Swartz was represented by senior counsel Louis Muller – before his appointment as a High Court Judge – and instructing attorney Francois Erasmus.Harald Geier and Lucius Murorua represented the MVA Fund.She, her sister and her sister’s small child were sitting in the back of a Volkswagen Caddy bakkie driven by Swartz’s husband, Harenz Swartz, as they visited relatives around Windhoek.A set of traffic lights are supposed to control the flow of traffic at that intersection.Yet at the moment shortly after midnight when the Swartz family’s vehicle crossed into the intersection from Abraham Mashego Street, a vehicle, driven by TransNamib employee Ben Serogwe, entered the same intersection from Mungunda Street.The two cars collided.In an instant, Mrs Swartz’s life was changed forever.Her neck was broken in the crash, leaving her paralysed.She was 31 at the time.Mrs Swartz sued the MVA Fund to be compensated for the financial damages she suffered, claiming mainly compensation for huge medical expenses that life as a quadriplegic would entail, and for the loss of income due to her condition.The MVA Fund agreed that she was entitled to receive compensation of N$4,713 million – but at the same time, claimed that negligence on the part of Harenz Swartz had been the sole cause of the collision, or that both he and Serogwe had been negligent and that Swartz’s negligence had contributed to the accident, with the result that he should be held responsible for at least part of the payment.In a judgement delivered in the High Court on Friday, Judge Kato van Niekerk dismissed these claims, and ordered the MVA Fund to pay Mrs Swartz N$4,713 million, plus annual interest of 20 per cent from 14 days after the date of the judgement, as well as the legal costs of the High Court case.Judge Van Niekerk presided over a 17-day-long trial about Swartz’s claim before she reserved her judgement in the matter in December 2004.At the heart of the dispute were two clashing versions of what had happened, and whether Swartz was under the influence of alcohol at the time.Mr Swartz and Serogwe both claimed that it was the other driver who had ignored a red traffic light, causing the crash.In addition, the court heard testimony from witnesses who claimed that they saw beer and liquor bottles lying in the back of the bakkie and in its cabin after the accident.Other witnesses contradicted this version of events, however.Mr Swartz admitted that he left the accident scene and that he returned only after the Police and an ambulance had been at the scene and the vehicles had been removed, but he claimed he had run to his brother’s house nearby to try to summon help because the Police and an ambulance took too long to arrive.To others observing Mr Swartz it probably looked as if he was fleeing the scene, and it was not improbable that this impression could have led to a suspicion that he was under the influence of alcohol and as a result had to make a getaway, Judge Van Niekerk commented.However, she added, “in the absence of any credible evidence that he was indeed under the influence, the probabilities favour Swartz’s version that he left the scene for an innocent purpose”.Swartz had made a good impression on her when he testified, she commented.In contrast, Serogwe’s testimony, was not satisfactory, she added, noting that there had been “countless instances where he clearly contradicted himself, adjusted his evidence to cast himself in a better light, blamed others for his mistakes, gave spurious answers and even fabricated evidence”.She remarked: “At times he seemed not to know the difference between lies and the truth.Apart from this he was distinctly hostile, arrogant and rude in the witness box while being cross-examined.”She could find no basis upon which it could be said that Harenz Swartz had been driving negligently, Judge Van Niekerk stated.Serogwe, on the other hand, admitted that he had driven at about 80 kilometres an hour in a 60 km/h zone.”He did not keep a proper look out or enter the intersection with the necessary care expected from a reasonable driver in the circumstances,” she found.”It is clear that Serogwe was negligent and caused the accident.”Mrs Swartz was represented by senior counsel Louis Muller – before his appointment as a High Court Judge – and instructing attorney Francois Erasmus.Harald Geier and Lucius Murorua represented the MVA Fund.

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