About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2021
>>
[2021] ZAKZDHC 44
|
|
Mkhize v Road Accident Fund (D4052/2021) [2021] ZAKZDHC 44 (14 December 2021)
THE
HIGH COURT OF SOUTH AFRICA
KWAZULU–NATAL
LOCAL DIVISION, DURBAN
D4052/2021
In
the matter between:
WENDY
SAMKELISIWE
MKHIZE PLAINTIFF
and
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
Chetty
J:
[1] This
is an action in which the plaintiff was involved in a motor vehicle
collision on 3 February 2019 in which
she was a passenger. A claim
was lodged on 26 June 2020 with the defendant, and after
consideration of the plaintiff’s claim,
an offer was conveyed
by the defendant accepting 100% liability.
[2] Subsequently,
an action was instituted by the plaintiff only in respect of quantum.
There was no appearance
to defend filed by the defendant as
contemplated by the Uniform rules. The matter therefore proceeded to
be placed on the unopposed
trial roll in accordance with the Practice
Manual of this Division, amended as at 20 September 2021 (‘the
practice directives’).
Despite having not taken any steps to
defend the matter for almost a year, the defendant, through the
office of the State Attorney,
filed an appearance to defend. To make
matters worse, the defendant took no further steps to file any expert
reports in relation
to the quantum claimed. The plaintiff therefore
prepared for the matter on the basis that there was not to be any
opposition, despite
notices of set down having been served on the
offices of the defendant, by the sheriff.
[3] On
the day the matter was called at the Unopposed RAF Roll in terms of
practice directive 38A, the defendant
was represented by counsel and
indicated that they intended opposing the plaintiff’s claim in
respect of quantum. When the
matter came before me I pointed out to
Ms
Moodley
, who had appeared before me in a similar
‘undefended’ matter a week earlier, that it would defeat
the objective of
practice directive 38A for trials to become fully
opposed at the last minute. It appears to me that the defendant is of
the view
that it may ignore compliance with the Uniform Rules and the
practice directives, only to appear on the day of an unopposed trial,
with a request to either adjourn the matter or ‘make
submissions’.
[4] The
conduct of the defendant is prejudicial to both the plaintiff and the
court. The plaintiff has no idea
of the basis on which its claim is
being opposed and effectively is ‘ambushed’ by the
tactics being employed by the
defendant. The court, instead of
dealing with matters expeditiously where the defendant has not
participated further in the proceedings,
is now faced with a trial
where the defendant has simply chosen to ignore the pre-trial
procedures, has not filed any expert notices
and essentially
undermines the purpose of practice directive 38A. Such conduct by the
defendant cannot be condoned, even if the
purpose of counsel’s
appearance is to ‘make submissions’ on the quantum
claimed by a plaintiff.
[5] Notwithstanding
my views, which I conveyed in court to counsel for the defendant, I
allowed the matter to proceed
and to hear the defendant’s
submissions. Mr
Cele
for the plaintiff was obviously desirous
to have the matter disposed of on the day and therefore had no
objection to the defendant’s
late appearance and intervention
in the matter. To exclude the defendant from the proceedings or to
grant it an adjournment would
not have been in the interests of
justice as this would delay the finalisation of the matter, to the
obvious prejudice of the plaintiff.
At the same time the defendant
should not assume that it is entitled to repeat its conduct in the
future.
[6] The
issue for determination was a claim for general damages by the
plaintiff, for the sum of R600 000 for pain
and suffering and for the
loss of amenities of life. The plaintiff is currently 28 years’
old. At the time of the accident
she was a 26 year old student at the
Coastal TVET College, studying towards Electrical Engineering: Heavy
Current. Mr
Cele
brought to my attention that the plaintiff
had been hospitalised for a period of two weeks following the
accident and in light of
her injuries, had to abandon her studies in
2019. She resumed studying a year later.
[7] Counsel
for the plaintiff referred to various decisions where the plaintiffs
had sustained lacerations to the
head and soft tissue injuries to the
spine, as well as fractured ribs. These are similar to the injuries
sustained by the plaintiff
in the present matter. In
V v Road
Accident Fund
(2069/2016) [2017] ZAGPPHC 882 (31 March 2017) the
plaintiff was awarded an amount of R500 000 for general damages in
2017, where
as a result of the accident, the plaintiff was unable to
walk for long periods of time, nor able to lift heavy objects. It was
submitted by Mr
Cele
that the plaintiff will be inhibited in
her future working career in as much as she would not be able to lift
heavy objects while
working in an electrical engineering environment.
Obviously there is an element of uncertainty as to where and in what
environment
the plaintiff may secure employment. This is to be
considered in relation to the loss of earnings claim of the
plaintiff, and the
contingency to be applied in that respect.
[8] The
plaintiff relied on the report of an orthopaedic surgeon, Dr AA
Osman, which indicated that the CT scan
showed a fracture of her
ribs. In hospital, the plaintiff complained of pain in the thoracic
spine area which was treated conservatively.
She also had a
laceration on her forehead. In so far as the spinal injuries are
concerned, it was recorded that the plaintiff would
benefit from
physiotherapy however it is anticipated that she would have limited
rotation due to the spinal injury.
[9] Ms
Moodley
for the defendant submitted that the injuries which
the plaintiff sustained were not so severe as to justify an award of
general
damages in the amount of R600 000. In this regard she pointed
out that the orthopaedic surgeon noted that the laceration to the
forehead was sutured and was healed, and had faded. It is not in
dispute that the plaintiff was unable to continue with her studies
in
the year in which the accident occurred, but has since returned to
her studies in electrical engineering. In so far as the limitation
of
rotation arising from the thoracic spinal injury, it was pointed out
that the plaintiff’s expert concludes that she has
a ‘
full
range of motion when bending, on extension and flexion
’.
She experiences restricted motion only on rotation to the right and
left, with tenderness over the T12 region. No neurological
deficits
were noted. As set out earlier, all of the fractures were treated
conservatively, as seen fit by the medical experts,
and the X-Rays
revealed no deficit of the spine, except of the general lateral
curvature of the thoracic lumbar spine.
[10] It
is trite that each case must be assessed on its merits and in regard
to the particular circumstances and
injuries affecting a particular
claimant. Ms
Moodley
referred me to a number of authorities
pointing to more conservative awards in the region of between R413
000 to R500 000 as being
fair and reasonable in the circumstances.
[11] In
light of the submissions and the authorities referred to me, and of
the conclusions drawn by the plaintiff’s
orthopaedic surgeon, I
am satisfied that an award for general damages for pain and suffering
in the amount of R480 000 is fair
and reasonable in the
circumstances.
[12] Turning
to the second part of the claim pertaining to the plaintiff’s
loss of earnings, counsel for
the plaintiff referred me to the
actuarial calculations based on the conclusions of the Occupational
Psychologists and of the Industrial
Psychologist recording that the
plaintiff would not be able to work until her normal retirement age
of 65 due to her injuries.
Two scenarios were postulated – one
based on retirement at age 60 (early retirement) and the other at the
normal retirement
age of 65. In light of the contention that the
plaintiff would not work until her full retirement age, the
plaintiff’s counsel
applied a 20 per cent contingency
pre-morbidity, and 15 per cent post morbidity.
[13] As
no dispute was raised with the contention that the plaintiff would
not be able to work until her normal
retirement age, attention was
therefore focused on the first scenario of the plaintiff only working
until the age of 60. Based
on that scenario, the actuarial
calculation conducted by Mr I Buchanan put her loss of earnings at R2
126 286. Counsel for the
defendant however submitted that a higher
contingency should apply and suggested that the court consider a
contingency of 15 per
cent being made applicable to pre-morbidity and
15 per cent to post morbidity. In that scenario, and taking into
account that the
plaintiff would work until the age of 60 rather than
65, it was submitted that a fair award would be the amount of R1 758
516.05.
In reply, counsel for the plaintiff submitted that a more
equitable approach would be the application of 18 per cent
contingency
to pre-morbidity earnings. This equates to R1 905 623,71.
I am in agreement with the plaintiff’s counsel that such an
award
would be equitable and fair.
[14] In
so far as future medical expenses are concerned, an amount of R300
000 was claimed by the plaintiff. The
defendant however has made an
undertaking in terms of s 17(4)(
a
) of the
Road Accident Fund
Act 56 of 1996
, in terms of which it will pay 100% of any expenses
incurred by the plaintiff for future medical expenses. Counsel for
the plaintiff
confirmed that such an undertaking was acceptable to
the plaintiff.
[15] In
the result I am satisfied that an award of damages for general
damages (pain and suffering) in the amount
of R480 000 and for loss
of earnings in the amount of R1 905 623.71 is fair and reasonable.
[16] In
the result, the following order is made:
1. The
defendant is ordered to pay to the plaintiff the amount of R2 385
623,71, care of Trust
Account: VUMASE SS INC., FNB, A/C 6242 43 444
72, B/C 221126, REF: MKHIZEWS/RAF/19/2020, within 180 days of the
date of this order.
2. In
the event of the defendant failing to pay the said sum in (1) above
within 180 days, it shall
be liable for interest at the current legal
interest rate from thereon until the date of final payment.
3. The
defendant shall furnish the plaintiff with an undertaking in terms of
section 17(4)(
a
) of the
Road Accident Fund Act 56 of 1996
for
those costs related to future medical costs.
4. The
defendant is to pay plaintiff’s experts for consultation and
production of medico-legal
reports, including those of:
(a) Dr AA
Osman - Orthopaedic Surgeon
(b) Ms Z.
Buthelezi - Occupational Therapist;
(c) Mr
S Gumede - Industrial Psychologist and
(d) Edge
Actuaries.
5. The
defendant is to pay the agreed or taxed party and party costs of
suit, including counsel’s
fees attendant on preparation for
trial and appearance.
6. The
plaintiff is directed to file a contingency fee affidavit within ten
(10) days of the date of
this order.
M
R CHETTY
Appearances
For
the Plaintiff: Mr
E S Cele
Instructed
by: Vumase
Inc
Address: 465
Che Guevara Road, Glenwood
Tel: 031
201 1059
Fax: 086
542 2841
Email:
simo.vumase@gmail.com
Ref: Mkhizws/RAF/19/2020
For
the defendant: Ms S Moodley
Instructed
by: State
Attorney, Durban
Address: 6
th
Floor, Met life building
391
Anton Lembede Street, Durban
Email:
denellen@raf.co.za
and
too
rianaa@raf.co.za
Ref: 5015835-SM
Date
Judgment reserved: 17 October 2021
Date
of Judgment: 14
December
2021