Sotomela v Road Accident Fund (4391/2014) [2021] ZAECPEHC 29 (23 April 2021)

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[2021] ZAECPEHC 29
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Sotomela v Road Accident Fund (4391/2014) [2021] ZAECPEHC 29 (23 April 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN CAPE
LOCAL DIVISION, PORT ELIZABETH
CASE
NO. 4391/2014
Date
heard: 23 April 2021
In the matter
between:
ANELE
SOTOMELA
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
REASONS FOR ORDER
RUGUNANAN
J
[1]
Following the defendant’s non-appearance
on 23 April 2021 when the matter was called for trial, the plaintiff
proceeded under uniform
rule 39(1) to prove his remaining claim for
damages for loss of earnings and / or loss of earning capacity in so
far as the burden
lay upon him.
[2]
Plainly,
the defendant was in default of appearance.
[1]
[3]
The
plaintiff, at the age of 24, suffered multiple and extensive bodily
injuries
[2]
in a motor vehicle
collision on 8 December 2012. Liabilitya on the merits is not in
issue
[3]
, nor are general
damages, past hospital expenses, and future hospital and related
expenses - such heads of damages becoming settled,
the last-mentioned
on tender of a certificate of undertaking.
[4]
On
the plaintiff’s remaining claim, the issue for determination turned
on whether the calculation
[4]
of
his loss by actuaries Arch Consulting ought to be accepted.
[5]
After hearing testimony from the plaintiff
and his expert witness, Ben Moodie, an Industrial Psychologist, I
granted an order in terms
of the draft attached hereto as “Annexure
SR” and stated that reasons would be furnished later.
[6]
Such reasons as are stated hereunder are
couched without undue emphasis on the minutiae of the evidence.
[7]
Among
the extensive bodily injuries suffered by the plaintiff is a closed
head injury described as a mild traumatic brain injury with
a
consequent mild neurocognitive disorder.
[5]
The brain injury is responsible for changes in mental activity
[6]
associated with memory impairment, learning difficulties and other
complications as to which the plaintiff testified.
[8]
The
facts in support of the plaintiff’s claim are pleaded in the
following terms:
[7]
“
Future
loss of earnings and / or loss of earning capacity:
R5 289 392.00
The … claim …
has been calculated based on the medico-legal reports filed of record
… and is premised on the future uninjured
career path, progression
and earnings of the plaintiff as detailed per scenario 1 under
paragraph 5 of the … report of Mr B Moodie,
an industrial
psychologist, dated 22 August 2018, as read together with scenario 1
under paragraph 2.3 of the actuarial report of
Arch Actuarial
Consulting, dated 4 February 2021; and further premised on the
injured career path and earnings of the plaintiff as
per paragraph 7
of the said report of Mr B Moodie, as read together with paragraph
2.4 of the said actuarial report, and with the
application of a
future uninjured contingency deduction of 25% and a future injured
contingency deduction of 35%, with the said future
injured
contingency deduction being in consequence of the residual
difficulties and facts detailed in the said report of Mr B Moodie,
is
claimed in the aforesaid amount, as capped …”
[9]
Except
for the reports by Mr Moodie and Arch Consulting, the defendant
admitted all expert medico-legal reports filed by the plaintiff.
Among them are notably those by an orthopaedic surgeon
[8]
,
a neurosurgeon
[9]
, a clinical
psychologist
[10]
and an
occupational therapist
[11]
.
The admission traverses the contents of the reports and opinions by
the experts being received into evidence without the necessity
for
formal proof.
[12]
[10]
Accordingly,
the plaintiff’s compromised earning capacity constituting a loss
which diminished his estate is not in issue.
[13]
For present purposes the
onus
only lay upon him to quantify or compute that loss, the essence of
the computation being to compensate him for his loss of earning
capacity.
[14]
[11]
By
way of a brief excursus, the defendant procured reports from its own
experts, an industrial psychologist and a consultant actuary.
These
reports were not filed for the reason that approval, due to
circumstances out of the hands of the claims handler, could not
be
obtained.
[15]
[12]
The
plaintiff’s testimony, supplemented and corroborated by the
admitted medico-legal reports, is that he is employed in the South
African National Defence Force (SANDF) since 2009. Prior thereto he
held employment as a general worker in a construction company.
He
currently holds the rank of Corporal and primarily performs access
control and security related duties. He is required to carry
a
firearm daily. He is short-tempered and easily angered
[16]
and complains of frequent headaches and facial numbness and is
obliged to take untimely breaks which he is not allowed to do.
[13]
He
is required to stand for long periods of time and experiences chronic
pain and discomfort, particularly in his lower back and left
arm and
when lifting heavy objects such as trunks containing weaponry.
[17]
He is forgetful and is unable to retain information. In the course of
his duties he is obliged to write down messages that are
telephonically
relayed to him, at times being forgetful of what must
be written if not done immediately.
[14]
In
the past year due to the Covid-19 pandemic he has not undergone a
medical and / or competency assessment. He is concerned that
he might
not make the grade for such an assessment should this be undertaken
and in which event his employment tenure and / or chances
of
promotion
[18]
will be placed
at risk.
[15]
His
impediments, particularly forgetfulness, affected his attempts to
study at tertiary level,
[19]
post-accident, and precluded him (in 2013) from pursuing an
introductory course geared towards an LLB degree and from completing
modules in pursuit of a BMIL qualification in the field of Security
and African studies (in 2014).
[20]
Had he completed the latter degree he would have applied for a
position in the intelligence department within the SANDF. A law
degree
would have enabled him to move into the private sector.
[16]
On
the basis of the above and the plaintiff’s biographical
information, including the opinions expressed by the experts in the
admitted
medico-legal reports, Mr Moodie conducted an assessment of
the plaintiff’s pre-accident and post-accident career progression
and
income earning potential. He documented his conclusions in a
report and confirmed its contents in oral evidence.
[21]
[17]
Pre-accident,
it is postulated that the plaintiff would have studied law while
maintaining his current employment in access control.
On completion
of his studies, two scenarios are proposed; only the first being
relevant for present purposes (it being evident from
the claim as
pleaded)
[22]
. In this
scenario, the plaintiff completes ‘articles of clerkship’ and is
inter-departmentally transferred to the Department
of Justice,
earning a median salary at Paterson level D2 with inflationary
increases until retirement at age 65.
[23]
[18]
Post-accident,
it is postulated that the plaintiff will retain his current
employment with annual earnings of R314 000 plus inflationary
increases until retirement at age 60. His impediments and subjective
complaints will be intrusive factors in his work environment,
making
it difficult for him to outperform his counterparts.
[24]
For these reasons and considering the evidence presented, plaintiff’s
counsel, Mr Paterson, correctly submitted that an elevated
general
contingency deduction is warranted in the post-accident scenario.
[19]
The plaintiff’s postulated pre-accident
income level and current post-accident earnings have been assimilated
into the calculation
by actuaries Arch Consulting, prefactoring
general contingencies of 25% and 35% respectively for these scenarios
resulting in a quantified
loss of R5 289 392 after capping.
Acknowledging the discretionary power accorded to a court, the
contingency deductions,
in my view, not being unreasonable and fully
justified given the uncontested facts and circumstances, and thus the
court’s acceptance
of the calculation. In summary, the evidence
presented by the plaintiff insofar as the burden lay upon him accords
with the formulation
of his claim as pleaded and the
onus
accordingly discharged.
[20]
In
the circumstances the draft order marked “Annexure SR” hereto,
reference to agreement between the parties being deleted,
[25]
is made an order of court.
____________________________
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Plaintiff:
Adv.
N.
M. Paterson
Instructed
by:

John B. Scott Attorneys
Plaintiff’s
attorneys
6
Bird Street
Central
Port Elizabeth
(Ref: JBS/S0275)
Tel: 041-582 2238
Email:
hannelie@jbsainc.com
For
the Defendant:

No
Appearance
Reasons handed
down electronically on 07 May 2021 at 11h30.
[1]
Knowledge
of the trial date being at all times attributed to the defendant
through its claims handler who confirmed by email dated
22 April “…
we
leave it up to the court to decide on a reasonable outcome and
judgment herein.”
,
as per Exhibit A3 read with rule 37 minutes, 13 March 2021 and per
Exhibit B. See also
Ferreiras
(Pty) Ltd v Naidoo
(69094/2014) [2017] ZAGPJHC 392 (11 December 2017) at paragraph [12]
where default of appearance connotes absence of a party; also
Masango
v Kimberley Clark of South Africa (Pty) Ltd
(24922/06)
[2007] ZAGPHC 58
[22 May 2007] at paragraph 9 and the
authority cited therein … “ … he who does not attend on the
day fixed [is] to be accounted
a dallier and defaulter …”
[2]
Amended
POC, in Exhibit C - Bundle of documents, paragraph 8
[3]
Conceded
in October 2016, Joint practice Note, 6 October 2020, paragraph 2.2
[4]
Dated
4 February 2021 and introduced into evidence under affidavit
[5]
Amended
POC paragraph 8
[6]
Otherwise
known as mentation, report Moodie, 29 quoting from neurosurgeon
Copley
[7]
Amended
POC, Exhibit C, bundle of documents. Notice of intention to amend on
date of trial was given to the defendant on 22 April
2021, to which
no objection was raised
[8]
Dr
V Oelofse 13 October 2016
[9]
Prof
I B Copley 4 July 2018
[10]
Dr
H Swanepoel 26 July 2018
[11]
Ms
C Mercer 12 July 2018
[12]
Minutes
rule 37, 13 March 2021, paragraphs 1.1 to 1.9 and 2
[13]
see
Deysel
v Road Accident Fund
(2483/09) [2011] ZAGPJHC 242 (24 June 2011) at paragraphs [17] to
[19] and the reference therein to
Rudman
v Road Accident Fund
[2002] 4 All SA 422
[14]
Bane
and Others v D”Ambrosi
2010 (2) SA 539
(SCA) at 547E
[15]
Minutes
rule 37, 13 March 2021, paragraph 3
[16]
report
Moodie, 21 quoting from clinical neuropsychologist Swanepoel
[17]
report
Moodie, 21 quoting from clinical neuropsychologist Swanepoel
[18]
report
Moodie, 21 quoting from clinical neuropsychologist Swanepoel
[19]
UNISA
and Stellenbosch University –Report Moodie, 11
[20]
A
degree for which he enrolled at Stellenbosch
[21]
The
report is dated 22 August 2018
[22]
Amended
POC, Exhibit C
[23]
Report
Moodie, 18
[24]
Report
Moodie 29
[25]
Correctly
brought to my attention by Mr Paterson prior to the handing down of
these reasons