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[2010] ZAGPPHC 560
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Moagi v Road Accident Fund (52566/2008) [2010] ZAGPPHC 560 (19 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO:
52566/2008
DATE: 19 FEBRUARY
2010
NOT REPORTABLE
NOT OF INTEREST
TO THE OTHER JUDGES
In the matter
between:
MULARISI
SELIMAH
MOAGI
........................................................................................................
Applicant
And
ROAD ACCIDENT
FUND
......................................................................................................
First
Respondent
JUDGMENT
LEDWABA J
[1] This is an
application for default judgment. According to the Sherriff s return
of service summons was served on the defendant
13
th
November 2008. The defendant has not filed a Notice to Defend the
action.
[2] In the summons
the plaintiff is claiming the amount of R 1 197 000 made up as
follows:
General
damages: R180 000
Future
medical expenses: R 237 000
Future
loss of earnings: R 780 000
Total: R 1 197 000.
[3] The plaintiffs
claim arises from an accident that occurred on the 12
th
September 2006 at approximately 15h50 near Letsetire in the Limpopo
province. The plaintiff, a traditional healer born on 20
th
May 1954, was a passenger in an Isuzu bakkie with registration
BDC416N driven by Joel Rikhotso travelling in Litsitere Road. She
alleged that the accident was caused by a truck, the particulars are
unknown to the plaintiff, which negligently swerved to the
right and
collided with the bakkie whilst the bakkie was still overtaking. She
further alleged that the collision was caused by
the sole negligence
of the driver of the unknown truck and as a result of the said
collision and she sustained bodily injuries.
[4] She alleged that
she suffered the following injuries:
4.1 Open transverse
fracture through the left distal fibula;
4.2 Rupture of the
anterior tibial artery;
4.3 Deep cut wounds
over anterior lateral aspect;
4.4 Severed
collateral ligaments of the left knee joint;
4.5 Injury to the
extensor mechanism of the right knee;
4.6 Cut wounds over
the face, forehead, nose and upper lip;
4.7 Soft tissue
injuries over the right arm, right leg including the right knee
joint.
[5] The plaintiff
was also examined by Dr. Hans B. Enslin an orthopaedic surgeon, on
15
th
October 2007, who in his medical legal report noted
the following injuries:
- head injury with
loss of consciousness.
- injury to the
anterior tibia artery.
- injury to the
ligaments and both knees, with an extension mechanism of the right
knee.
- lacerations on the
forehead, lip, right arm and left shoulder.
- an injury to her
teeth.
The doctor confirmed
that according to the documentation presented to him, the plaintiff
was taken to Letaba hospital in an unconscious
state and was admitted
for approximately two months, undergoing treatment specified by Dr.
Hoog.
[6] The medical
treatment given to the plaintiff involved: wound suturing and
dressing, x-rays of the skull, chest, pelvis, neck,
right leg and
left leg, a debridement of the left leg was performed and repair of
the tibia artery under anaesthesia, collateral
ligaments of the left
knee was repaired, crepe bandages were applied and was supplied with
blood, followed by physiotherapy.
[7] Plaintiffs
complaints involved the following:
- She has pain on
daily basis on the right knee, which aggravates when it is cold and
she is unable to squat nor walk without crutches,
- the right knee
tends to give way,
- she experiences an
instability on the left knee which also tends to give way,
- she complains
about the disfigurement of her left leg, and
- she states that
these symptoms are not improving.
[8] According to the
doctors, she is left with limited movement of the left lower leg and
knee. The right knee reveals atrophy of
the quadriceps muscles which
are very weak, with the ligaments revealing a grade III instability.
She cannot walk without crutches.
[9]
Dr. Enslin concludes that the plaintiff has 50% impairment of the
whole person as per the
‘
Guides
to the Evaluation of Permanent Impairment’
5
th
edition, by Cocchiarella and Anderson as published by the American
Medical Association in 2002. He proposes that the plaintiff
needs
future ongoing treatment including:-
-
an
arthrodesis
of
the left ankle - 10%
- construction of
the medial and lateral ligaments of the right and left knees - 90%
- he suggests that a
5% chance exists that she will need a knee replacement.
[10] The prognosis
is according to him, a poor one which makes it unlikely that she will
come out of the cripple state as caused
by the accident. She is
likely to remain cripple as the proposed surgeries are unlikely to be
completed successfully. The pain
and suffering are likely to form
part of her daily life for the remaining part of her life.
[11] An industrial
psychologist, Ben Moodie, examined the plaintiff on 28
th
August 2009 and confirmed the injuries sustained by her as per the
report by the orthopaedic surgeon. He performed a psychometric
evaluation and confirmed that the plaintiff has academically
completed Grade 5 (standard 3) in 1966 at Daan Primary school in
Tzaneen. The psychometric evaluation intended to establish the
appropriate position in which the plaintiff could be employed now
that the accident occurred. The assessment considered aspects such as
educational background, aptitudes, personality, vocational
interests.
He states that a psychometric test would not be feasible as the
plaintiff was already 52 years old and retraining for
an alternative
career would not be feasible, because of her qualifications and the
inability to understand english and afrikaans.
He further states that
the plaintiff would have relied on physical strength to earn a living
all her life.
[12] Prior to the
accident, the plaintiff completed four month training in 1993 in
Julesburg and became a Sangoma. She used to work
as such for seven
days in a week. It is alleged that she use to consult 35-40 patients
per week at R70 per consultation. She was
therefore earning about R 2
652 per week.
[13] She further
stated that she provided herbal medicine which she personally
obtained from mountains to some of her patients.
She earned an extra
income of about R250-R1000 per consultation depending on the illness
of the patient. She mentioned that on
average she was earning about
R7000 per month. She said she worked strictly on cash basis and has
no documentary proof of her income.
[14]
Dr. Ben Moodie states that according to a discussion paper:
‘
Traditional
Medicine and Traditional Healers in SA’
dated
27
th
November 2003, the
Traditional
Health Practitioner’s Bill of 2003
does
not provide details on what minimum requirements are or what training
or practice criteria have to be fulfilled for a person
to be regarded
as a traditional health practitioner. It is his opinion that the
mentioned income is in line with the suggested
guidelines thereof and
is therefore realistic.
[15] According to
Dr. Enslin reports, examinations and evaluations, he is of the
opinion that the plaintiff is unlikely to secure
any position in the
open labour market due to her age and limited work experience. He
recommends that the plaintiff and should
be compensated for the
difference in her pre and post accident income and potential income.
[16] The plaintiff
was a passenger and therefore needs to prove the proverbial one
percent on the part of the truck driver for her
unlimited claim to
succeed. There is nothing on the documents before me to contradict
that the plaintiffs claim on the merits should
succeed.
[17] The plaintiff
has attached in her papers a letter from the greater Tzaneen
Traditional Practitioner Healers Association dated
14
th
December 2007, confirming that she indeed practice as such and made
an average of R 7000, 00 per month. The industrial psychologist
telephonically consulted with Ms. Noma Kgopyane of the Association,
and she confirmed that the alleged income is possible and realistic.
She further confirmed that the plaintiff is now unable to practice as
such.
[18] It appears
reasonable to accept that the plaintiff cannot post morbidly travel
around, climbing mountains to dig medicine according
to her
orthopaedic injuries. However, in my view, she can still consult with
her patients in her house as this practice is alleged
to be taking
place at her home. In essence, the plaintiff should be compensated
for loss of income accordingly. I think it would
be fair and
reasonable to calculate plaintiffs loss of income in the amount of R2
800 per month having regard to the aforesaid.
[19] It appears from
the industrial psychologist that the plaintiff cannot be gainfully
employed post accident. The orthopaedic
surgeon also stated that the
plaintiff will endure pain for the rest of her life.
[20] There are two
reports calculating the plaintiffs loss of earnings by Robert Koch,
on instructions for the plaintiffs attorneys.
I think it is proper to
use the report dated the 16
th
November 2009 based on the
loss of income of R 2 800 per month because I think the plaintiff can
still consult with her patients
even though she cannot make more
income in selling herbs. The plaintiff would therefore lease about R
3 3600 per year. It appears
that this assumption is not unreasonable
as the income falls within unskilled level earnings.
[21] Past loss of
income was calculated at R122 493 and future loss of earnings was
calculated at R334 588 by the actuory. The income
was assumed to be
earned until the age of sixty-five. No contingencies were applied.
[22] It is a general
practice that a contingency of 5% to 7% is applied to past loss of
earnings. However, there is no claim for
past loss of earnings in the
particulars of claim. Plaintiff has also not claimed for past medical
expenses.
[23] On the future
claim of loss of earnings, it is reasonable to apply normal
contingency of 15% since her practice as a sangoma
had been going on
for many years since 1993. The claim where contingency of 15% is
applied would be reduced to R 284 399, 88.
[24]
Dr. Enslin has foreseen medical expenses and outlined some in his
report. This head of damages should be compensated in terms
of
section 17(4)(a)
certificate.
[25] I think that
the reasonable amount for the general damages should be R 180 000,
R284 399.88 for future loss of income and a
certificate to be issued
by the defendant for future medical expenses.
[26]
I therefore, make
the following order:
(i) defendant is
liable to pay plaintiff the sum of R 464 399, 80,
(ii) defendant to
furnish plaintiff with the relevant certificate for future medical
expenses,
(undertaking in
terms of Section 17(4)).
(iii) defendant
is liable to pay plaintiffs costs.
A. P. LEDWABA
JUDGE OF THE HIGH
COURT
defendant
to furnish plaintiff with the rele certificate for future medical
expenses, (undertaking in terms of Section 17(4)).
defendant is liable
to pay plaintiff’s costs.
A. P. L
JUDGE OF THE HIGH