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MC v Road Accident Fund (26299/2018) [2019] ZAGPJHC 242 (12 June 2019)

75 Reportability
Personal Injury Law - Road Accident Fund
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Brief Summary

Tort — Road Accident Fund — Claim for damages arising from motor vehicle collision — Plaintiff sustained severe injuries resulting in quadriplegia and loss of income — Liability settled at 90% in favour of plaintiff — Court required to determine quantum of general damages and loss of earnings — Plaintiff's evidence regarding income supported by expert reports — Future loss of earnings calculated based on projected income until retirement age — General damages assessed with reference to comparable cases — Court awarded total damages of R1 123 408.09 for loss of earnings and R1 800 000.00 for general damages, subject to apportionment for plaintiff's fault.

Comprehensive Summary

Summary of Judgment


1. Introduction


This judgment concerns a delictual claim for damages instituted against the Road Accident Fund in terms of the Road Accident Fund Act 56 of 1996, arising from a motor vehicle collision in which the plaintiff sustained catastrophic bodily injuries.


The parties were MC (plaintiff) and the Road Accident Fund (defendant). The plaintiff sought compensation for losses said to have been caused by the negligence of the driver of an unidentified oncoming vehicle (described as the insured motor vehicle) whose driving allegedly precipitated the plaintiff’s loss of control and collision.


The matter initially proceeded on both liability (merits) and quantum. After the plaintiff’s evidence was led and he was questioned on certain aspects, the parties informed the court that liability had been settled, with the defendant conceding 90% liability for the plaintiff’s proven damages (implicitly reflecting 10% contributory negligence attributed to the plaintiff). The issues that remained for determination were confined to quantum, specifically general damages and past and future loss of earnings/income.


The hearing proceeded on the basis that no oral expert evidence would be led. Instead, the parties agreed that the contents of the medico-legal reports and the joint minutes of overlapping experts would serve as proof of the injuries and their sequelae. The court therefore adjudicated the remaining issues based on the agreed expert material and the parties’ submissions.


2. Material Facts


On 24 December 2017 at approximately 13h30, the plaintiff (then 44 years old) was driving a Toyota Quantum on the R23 road near Perdekop, Mpumalanga. According to the case presented, an oncoming vehicle overtook another vehicle and crossed into the plaintiff’s lane at high speed. The plaintiff alleged that he swerved to avoid a collision, lost control, and moved onto the adjacent gravel road, resulting in a collision.


It was common cause for purposes of the quantum determination that the plaintiff sustained a traumatic cervical spine injury with severe neurological consequences. The court accepted, on the basis of the expert reports and joint minutes, that the plaintiff suffered injuries resulting in severe quadriplegia, with paralysis affecting both arms and legs, and consequential bladder and bowel incontinence. The court also accepted that there were significant permanent neurological sequelae and that the plaintiff was wheelchair bound, unable to drive, and unable to live independently.


Further accepted sequelae included an abdominal skin graft (with skin harvested from the thigh, leaving scarring), reduced sensation and weakness in the right hand, and reported pain in the right knee, back, and left foot. The evidence also recorded erectile dysfunction, ongoing need for rehabilitation and physiotherapy, and a poor neurological prognosis with risks identified by the neurologist (including risks of deep vein thrombosis, urinary tract infection, and bedsores due to immobility). The court also accepted that the plaintiff experienced severe depression linked to the loss of amenities and quality of life.


As to earnings, the industrial psychologists’ joint material indicated that the plaintiff was employed as a taxi driver and that he earned R1500 per week prior to the accident, with a projected working life to age 65, and inflationary increments. The defendant disputed that this income was satisfactorily proved due to the absence of documentary support such as bank statements or salary advices, and argued for a substantial additional deduction to reflect uncertainty.


3. Legal Issues


The central issues the court was required to determine were confined to quantum, namely:


The appropriate amount to be awarded as general damages for the plaintiff’s pain, suffering, loss of amenities of life, disability, and related non-patrimonial harm, taking into account the serious and permanent nature of the sequelae and the comparative guidance of prior awards.


The appropriate quantification of the plaintiff’s past and future loss of earnings/income, including whether the plaintiff’s asserted pre-accident earnings should be accepted on the available evidence and what contingency deductions should be applied, particularly in light of the nature of the taxi industry and the evidentiary challenges raised by the defendant.


These issues involved a combination of fact (the plaintiff’s pre-accident earnings and employment circumstances as established on the record), the application of law to fact (assessment of damages on actuarial and evidentiary material, including contingencies and apportionment), and a value judgment/discretion (the determination of a fair and reasonable award for general damages and the selection of appropriate contingencies).


4. Court’s Reasoning


Loss of earnings / income


The court approached the loss of earnings issue on the footing that the actuarial quantification depended materially on the accepted pre-accident earnings and on the selection of contingencies. It noted the industrial psychologists’ joint position that the plaintiff’s pre-accident income was R1500 per week, with a working life to 65, and that inflationary increments would have occurred. The industrial psychologists further noted that the plaintiff was employed in a regulated industry and that a wage determination approach could be relevant to the earnings assumption.


The defendant’s principal challenge was directed not at the actuarial methodology but at the proof of the plaintiff’s income. It was argued that because the plaintiff was a taxi driver paid in cash, the absence of bank statements or salary advice made the asserted income easy to claim and difficult to verify, justifying a further reduction of 30% to 50%. The plaintiff’s submission was that the evidence of income was consistent, was not rebutted, and that the absence of documentary proof should not be used to impose an unfairly higher burden on a cash-paid worker. It was also submitted that both industrial psychologists had consulted the plaintiff’s employer and confirmed the amount.


In addressing this dispute, the court referenced the contextual information in the reports, including the sectoral wage determination range for taxi drivers during July 2017 to June 2018 and the reference in the Quantum Yearbook to an earnings assumption for taxi drivers. While the judgment did not frame this as a strict evidentiary rule, it treated these references as part of the broader matrix relevant to assessing whether the earnings assumption was plausible.


The court ultimately proceeded on the basis of R1500 per week for the actuarial calculation. It accepted the actuarial computation which applied contingency deductions (including a 5% contingency and a 10% contingency reflected in the calculation as presented). It also accounted for the social grant amounts received to date by deducting them from the loss of earnings total, consistent with the calculations placed before it.


After applying the agreed 90% liability apportionment (reflecting that the plaintiff would recover 90% of proven damages), the court then applied an additional 10% contingency deduction. The judgment explains that this further deduction was to account for uncertainty associated with inflationary and fuel increases affecting the taxi industry, which could impact wages due to increased running costs. On this reasoning, the court determined the plaintiff’s loss of earnings at R1 011 067.29.


General damages


The court treated the quantification of general damages as an exercise of judicial discretion guided by comparable awards, while recognising the inherent imprecision of such assessments. The plaintiff sought general damages of R2 000 000.00, with a proposed reduction reflecting the 10% apportionment (yielding R1 800 000.00 claimed on that basis). In support, the plaintiff relied on three matters said to justify a higher award when adjusted to present-day values: Morake v RAF, Jiyane v RAF, and Webb v RAF.


The defendant argued that those comparators were not sufficiently aligned with the plaintiff’s injury profile because they involved additional serious injuries beyond spinal injury, which could explain higher awards. The defendant relied instead on Nokemane v RAF and Robyn v RAF, cases presented as more directly comparable because they involved spinal injury with paraplegic sequelae and general damages awards that, when updated, would support a lower figure. On that basis, the defendant submitted that R1 200 000.00 would be fair.


In explaining its approach, the court cited appellate guidance on the use of comparable cases, emphasising that such cases provide general guidance and assist in avoiding awards that are substantially out of accord with broadly similar cases, while acknowledging the permissibility of testing an assessment against the general pattern of awards. The judgment further relied on authority cautioning against a tendency to award high amounts and against allowing sympathy to influence the evaluation. It reiterated that compensation must be fair to both sides: providing proper compensation to the plaintiff without imposing an unduly burdensome award on the defendant.


Applying these principles, the court concluded that the defendant’s comparators were more comparable to the plaintiff’s injuries than the plaintiff’s authorities, because the plaintiff’s cases involved broader complications and combined injuries affecting the level of damages. The court accepted that awards updated to the present time for similar injuries were generally in the region of R1 200 000.00, while also noting that no case can match exactly and that the assessment remains an estimate rather than an exact science. On this basis, it awarded R1 200 000.00 as general damages.


5. Outcome and Relief


The court made an award for general damages in the amount of R1 200 000.00 and for loss of earnings in the amount of R1 011 067.29.


The total award determined by the court was R2 211 067.29, with the judgment indicating that this total took account of the agreed 10% deduction arising from the merits apportionment (i.e., the defendant being liable for 90% of the plaintiff’s proven damages). The order attached and marked “X” was incorporated into the judgment with the insertion of the total amount.


The judgment text provided does not set out a distinct, express costs order in the reasons reproduced.


Cases Cited


Morake v Road Accident Fund (52700/15) [2017] ZAGPPHC 761 (South Gauteng High Court, Pretoria).


Jiyane v Road Accident Fund (88870/2014) [2016] ZAGPPHC 1227 (South Gauteng High Court, Pretoria).


Webb v Road Accident Fund (2203/14) [2016] ZAGPPHC 15 (South Gauteng High Court, Pretoria).


Nokemane v Road Accident Fund 2011 (6A3) QOD 1 (ECG).


Robyn v Road Accident Fund 2013 (6A3) QOD 32 (GNP).


Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A).


Protea v Lamb 1971 (1) SA 53D (as cited in the judgment).


De Jongh v Du Pisanie NO [2004] 2 All SA 565 (SCA).


Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (D).


Hulley v Cox 1923 AD 234.


Legislation Cited


Road Accident Fund Act 56 of 1996.


Rules of Court Cited


No rules of court are cited in the judgment text provided.


Held


The court held that, after the settlement of merits on a 90/10 apportionment in the plaintiff’s favour, the remaining disputes concerned only the quantification of general damages and loss of earnings.


On the evidence accepted through expert reports and joint minutes, the court held that the plaintiff’s injuries resulted in catastrophic and permanent sequelae, including severe quadriplegia, wheelchair dependence, and bladder and bowel incontinence, warranting a substantial award of general damages. However, when guided by comparable case law and caution against excessive awards, the court held that an amount of R1 200 000.00 was appropriate for general damages.


In relation to patrimonial loss, the court held that the plaintiff’s income assumption of R1500 per week should be utilised in the actuarial calculation, and that beyond the contingencies already reflected in the calculation and the 90% merits apportionment, an additional 10% contingency deduction was justified to account for uncertainties affecting wages in the taxi industry. The court held that the plaintiff’s loss of earnings amounted to R1 011 067.29, producing a total award of R2 211 067.29.


LEGAL PRINCIPLES


The judgment applied the principle that general damages are assessed through a discretionary value judgment aimed at achieving an award that is fair to both parties, recognising that such quantification is not an exact science and cannot be computed with mathematical precision.


It applied the approach that comparable cases should be used as general guidance to assist in arriving at awards that are not substantially out of line with previous broadly similar awards, while remaining mindful that no two matters are identical and that comparison must take into account differences in injury profiles and sequelae.


The court applied cautionary principles that awards should avoid undue generosity, and that courts should not allow sympathy to influence the quantification exercise. The assessment must provide just compensation without imposing largesse at the defendant’s expense.


In quantifying loss of earnings, the judgment applied the principle that actuarial calculations and expert joint minutes may be used as the evidentiary foundation where the parties agree to proceed without oral expert evidence, and that the court may adjust the final figure by applying contingency deductions to address uncertainties relevant to the plaintiff’s employment circumstances and the economic realities of the sector in which the plaintiff worked.

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[2019] ZAGPJHC 242
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MC v Road Accident Fund (26299/2018) [2019] ZAGPJHC 242 (12 June 2019)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 26299/2018
In the matter
between:
M
C
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MIA, AJ
[1] The plaintiff
was a 44 year old male when the collision occurred on 24 December
2017 at approximately 13h30 along the R23 road,
Perdekop, Mpumalanga
Province. The plaintiff was the driver of a Toyota Quantum with
registration […]GP. The collision occurred
when the plaintiff
swerved to avoid a vehicle which overtook and crossed into is lane of
traffic. The oncoming vehicle (insured
motor vehicle) was travelling
at a high speed and it is alleged the plaintiff swerved to avoid a
collision and lost control of
the vehicle when he swerved and moved
onto the adjacent gravel road.   He instituted an action
for damages against the
defendant in terms of the provisions of the
Road Accident Fund Act, Act 56 of 1996 (“the Road Accident Fund
Act”) arising
from bodily injuries that he sustained as a
result of the collision.
[2] The matter are
heard on both the issue of liability and quantum. After the
plaintiff’s evidence was led and he was questioned
by the
defence on certain aspects the court was informed that the issue of
liability (merits) was settled and conceded 90% in favour
of the
plaintiff’s proven damages. The issue which remained unresolved
between the parties and which I am required to determine
are that of
the quantum of the plaintiff’s general damages and the
plaintiff’s past and future loss of earnings/income.
[3] The matter came
before me on the basis that neither of the parties would lead oral
evidence of the experts. The parties agreed
that the contents of the
various medico- legal reports obtained on behalf of the parties and
joint minutes compiled by the overlapping
experts obtained would
serve as proof of the injuries and their sequelae. In view of the
defendant not having certain experts most
of the injuries are common
cause and the impact on the plaintiff and the sequelae are reflected
in the reports of the experts.
I am required to adjudicate the issues
in dispute based on the reports and the submissions made during
arguments based on the agreed
facts and the reports of the experts.
[4] As a result of the accident the
plaintiff sustained traumatic injury to the cervical spine which
caused paralysis to both his
legs and arms resulting in sever
quadriplegia. Consequently he also has bladder and bowel
incontinence. There is significant permanent
neurological sequalae.
The various experts categorised the injuries as follows:
4.1. Mr C sustained
C3/4 damage with paraplegia;
4.2 He has an abdominal skin graft due
to a split in the abdominal skin. Skin was harvested from his thigh
which now also bears
scars and is healed completely.  He has
features of one who has had a stroke. He is wheelchair bound, is able
to sit upright
in a wheelchair but has reduced sensation and weakness
in his right hand and reported pain in his right knee, back and left
foot
and is not able to drive a car or live independently.
4.3 He has erectile dysfunction as
well as bladder and bowel incontinence and requires rehabilitation as
well as interventional
physiotherapy.
4.4. His neurological prognosis is
poor. According Dr Mudau, the neurologist, Mr C is at risk of
developing deep vein thrombosis
and a urinary tract infection. There
is also a risk of developing bedsores due to his immobility.
4.5. Due to the impact of his injuries
on the loss of amenities quality of his life he also experiences
severe depression;
4.6. The impact of the injury also
affects Mr C’s future employment.  Joint minutes of the
Industrial psychologists Faith
Chamisa-Maulana and Rirhandzu
Lowane-Mayayise indicate that he earned R1500 per month and would
have worked till he reached the
age of 65 years old.
LOSS
OF INCOME
[5] The industrial psychologists opine
that Mr C was employed in a regulated industry and that whichever is
the greater between
his actual salary or the prescribed minimum
encouraged by government should be the amount adopted to determine
his future loss
of earnings.
[6] On the basis of
the joint minute of the industrial psychologists, the average income
of the plaintiff prior to the accident
was R1500 per week. It is
projected that he would have worked until the retirement age of 65
years in the taxi industry and that
he would have received
inflationary increments to his income. Despite the joint minute from
the experts, Mr Chabane appearing for
the defendant submitted that in
view of Mr C being employed as a taxi driver and there being no
salary advice to support his oral
evidence that he earned R1500 the
total amount of his claim should be reduced by 30%-50%. He argued
that it was convenient and
easy to declare an income amount without
providing a bank statement or salary advice and that the oral
evidence of Mr C was not
sufficient proof of his income. This he
argued even though there was an opportunity to cross examine the
plaintiff. Further Mr
C’s evidence remain constant despite the
questions disputing his income.
[7] In regard to
the question of Mr C’s income the plaintiff’s
psychologist indicates the sectoral determination for
the
determination of wages in the taxi industry over the period July 2017
and June 2018 was R3 679-R3085 per month for drivers.
The quantum
year book for 2019 suggests earnings assumption for taxi drivers at
R82 000.00.
[8] Having regard
to the actuarial report and the joint minutes, Ms Smit submitted that
the amount of R1500 per week be used to
calculate the future loss of
income. She argued that Mr C’s evidence was clear in this
regard. The defendant had not rebut
this evidence and to place a
higher burden on the plaintiff because he was employed as a taxi
driver and received a cash payment
should not prejudice him. She also
pointed out that both industrial psychologists consulted Mr C’s
employer and confirmed
this amount. Mr Chabane argued that he did not
question the actuarial calculation and accepted the amounts submitted
on behalf
of Mr C, however he argued that a further 30% deduction be
made after the total loss of earnings was calculated to accommodate
the uncertainty of Mr C’s income relating to the proof thereof.
[9] The aforegoing amount of R1500 per
week translated into an actuarial calculation by the plaintiff’s
actuary provided for
a 5% contingency deduction. The past loss of
earning was thus calculated at R113 579 less 5% which amounted to
R107 900.05. The
future loss was calculated at R 274 903 less a 10%
contingency deduction bringing the future loss amount to R1 147
412.70. The
addition of the two amounts resulted in the amount of R1
255 312.75. The social grant received to date totalling R19 547.66
was
deducted from the above amount realising a total of R1 235
765.15. The matter was settled on the basis that the  plaintiff

was attributed 10% of the fault and thus received 90% on the amount
calculated  thus 10% (R112 357.00)  is deducted due
to the
apportionment on the merits, resulting in an amount of R 1 123
408.09. I have applied a further 10% contingency deduction
to account
for the uncertainty in inflationary and fuel increases which impact
the taxi industry and may directly impact salaries
and wages due to
increased running costs. The plaintiff’s loss of earnings is
thus calculated at the amount of R1 011 067.29.
GENERAL
DAMAGES
[10] I turn now to
the general damages which is claimed in the amount of R2 000 000.00
less 10% totalling R1 800 000.00.
[11] Ms Smit relied
on three cases to support her argument that general damages be
awarded in the amount of R1 800 000.00. She referred
to
Morake
v RAF
(52700/15) [2017] ZAGPPHC 761
where the issue of general damages was in dispute. The plaintiff was
64 years old sustained a spinal
fracture, laceration to his head,
abrasions to his shoulder, contusions to his right hand, degloving
injuries over the occipital
skull and the loss of a front tooth. He
was wheelchair bound after the accident. The plaintiff was awarded R2
500 000.00.
[12] As further guidance Ms smit
referred to
Jiyane v RAF
(88870/2014)[2016] ZAGPPHC 1227,
where the plaintiff was 41 years old and sustained vertebral
injuries, a bilateral haemo-pneumothorax
with left lung contusion,
clavicle fracture, sterna facture, haemorrhagic shock, abdominal
trauma with liver lacerations, renal
failure as well as injuries
complicated by sacral as well as bilateral trochanteric pressure
sores, which resulted in a debrided
right thigh and right femurectomy
as well as a head and brain injury. The amount of R1 600 000 was
awarded as general damages.
[13] The third case
referred to by way of comparison was the matter of
Webb
v RAF
(2203/14) [2016] ZAGPPHC 15, the
plaintiff sustained a fracture and T12/L1 fracture resulting in
paraplegia, displaced radius and
ulna fracture. The plaintiff was
involved in the collision when he was 20 years old and had become
wheelchair bound as a result
of his injuries. The award for general
damages was R1500 000.00
[14] In referring
to the above cases Ms Smit argued that the general damages of the
plaintiff ought to be granted in the amount
of R 2000 000.00 having
regard to the current values of the above awards to the present time.
She conceded however that there be
a deduction of 10% due to the
apportionment of liability to the plaintiff.
[15] Mr Chabane
argued that the cases relied on by the Ms Smit overstated the
compensation due to the plaintiff as they included
injuries over and
above the spinal injuries resulting in higher awards. The cases which
he requested the court to have regard to
where he submitted more
appropriate as they were only dealt with spinal injuries. The first
case Nokemane v RAF 2011 (6A3) QOD
1 (ECG) related to a 39 year old
driver who sustained thoracic spinal injuries resulting in permanent
paraplegia. The court awarded
general damages of R800 000.00.
[16] In Robyn v RAF
2013 (6A3) QOD 32 (GNP) a 28 year sustained a dislocation fracture of
T12 and a haematoma over the site of the
fracture. The general
damages were determined in the amount of R920 000.00. In view of the
above two awards, Mr Chabane submitted
that it would be the amount of
R1 200 000.00 was a fair amount as general damages in the present
time.
[17]
The determination in awarding an appropriate amount that should be
fair to both parties is in the courts discretion. The plaintiff

should be properly but not overly compensated with an inordinately
high award which would burden the defendant.
[1]
I have had regard to the general considerations in the cases placed
before me. In this regard I have considered the decision in
Bay
Passenger Transport Ltd v Franzen
1975 (1) SA 269
(A) at p274 where the Court summarised the proper
approach to be followed as follows:
“
Comparable
cases, when available, should rather be used to afford some guidance
in a general way, towards assisting the Court in
arriving at an award
which is not substantially out of general accord with previous and
broadly similar cases, regard being had
to all the factors which are
considered to be relevant in the assessment of general damages. All
the same time it may be permissible,
in an appropriate case, to test
any assessment arrived at upon this basis by reference to the general
pattern of previous awards
in cases where the injuries and the
sequelae may have been either more serious or less than those in the
case under consideration.”(see
also
Protea
v Lamb
1971 (1) SA 53D
at 536 A-D).
[18] I have had
regard to the comments by the Court in the matter of
De
Jongh
v Du
Pisanie NO
[2004] 2 All SA 565
SCA,
where the Court reduced the award of the Court
a
quo
from R400 000 to an amount of R 250
000 for a head injury. At para [65] the Court noted the tendency to
award high amounts and
cautioned against same as it was not
mathematically accurate.
[19] I am mindful that merely
following the trend to grant high awards slavishly does not
take cogniscance of the view of
Holmes J in
Pitt
v Economic Insurance Co Ltd
1957 (3) SA 284
(D) at 287E–F that:
“
[T]he
court must take care to see that its award is fair to both sides –
it must give just compensation to the plaintiff,
but it must not pour
out largesse from the horn of plenty at the defendant’s
expense.”
I am equally aware of the view
expressed in
Hulley v Cox
1923
AD 234
at 246:
“
we
cannot allow our sympathy for the claimants in this very distressing
case to influence our judgment”.
[20] Having regard
to the case law, the actuarial calculation and comparable case law, I
have considered that the plaintiff is unemployable
for the next 20
years due to the spinal injury. I am persuaded that the case law
presented by Mr Chabane is more comparable to
the injuries sustained
by the plaintiff in the present matter. The cases relied on by Ms
Smit have more complications and combined
head and spinal injuries
and many other injuries which impact on the calculation of damages.
Similar awards updated to the
present time are in the region of R1200
000 generally. It is not possible to find a case which matches the
plaintiff’s case
exactly and the cases referred to serve as a
guide with the award being an estimate and not an exact science.
[21] In view of the above the sum
awarded is thus an amount of R1200 000 for general damages and R1 011
067.29  for loss of
earnings which results in a total award of R
2 211 067.29  which takes into account the 10% deduction in view
of the defendant
only being accountable for 90% on the merits. The
order attached marked “X”, is duly incorporated into the
judgment,
with the insertion of the amount of R 2 211 067.29.
_________________________________________________
S C MIA
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances:
On behalf of the
plaintiff

: Adv AE Smit
Instructed
by

: DJ Nkosi Attorneys
On behalf of the
Defendants

: Adv VJ Chabane
Instructed
by

: Z & Z Ngogodo Attorneys
Date of
hearing

: 4 June 2019
Date of
judgment

: 12 June  2019
[1]
De Jongh v
Du Pisanie N.O.
[2004] All SA 565
(SCA)

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