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[2024] ZAFSHC 39
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Molete v Road Accident Fund (4453/2022) [2024] ZAFSHC 39 (13 February 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
Number: 4453/2022
In
the matter between:
KEDIBONE
DAPHNE MARIA MOLETE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BY:
VAN RHYN J
HEARD
ON:
24 JANUARY 2024
DELIVERED:
13 FEBRUARY 2024
[1]
The plaintiff, Kedibone Daphne Maria Molete, a female born on […]
M[…] 1972, instituted
action against the defendant
in terms of the
provisions of the Road Accident Fund Act
[1]
(“the Act”)
for
payment
of the amount of R878 112.58 in damages arising from an incident
which occurred on 8 March 2019. A motor vehicle
accident
occurred on the M4 Road between Mothusi Road and the R730 Road,
Welkom, Free State Province when the driver, M M Ketime,
of a Ford
Ikon with registration letters-and-numbers CTZ […] (the
“insured vehicle”) collided with a pavement
barrier and
subsequently lost control of the insured vehicle as a result of which
it overturned. The plaintiff was a passenger
in the insured
vehicle at the time of the accident.
The
plaintiff’s action is based on the negligence of the insured
driver.
[2]
The matter was certified trial ready in respect of the merits and
quantum of the plaintiff’s
claim on 4 September 2023. The
defendant conceded the merits and its liability to compensate the
plaintiff for 100% of the proven
or agreed damages arising from the
collision. The parties agreed to separate the claim for past hospital
and medical expenses in
terms of the provisions of Rule 33(4) of the
Uniform Rules of Court and to postpone this aspect of the claim for
later adjudication.
[3]
The future medical and hospital expenses have also been settled and
the court was provided with
a draft order in terms whereof the
defendant is to furnish the plaintiff with an undertaking in terms of
the provisions of section
17(4)(a) of the Act for 100% of the costs
of the future accommodation of the plaintiff in a hospital or nursing
home or the rendering
of future medical treatment or the supply of
goods arising from the injuries sustained in the motor vehicle
accident.
[4]
The plaintiff did not claim any amount in
respect of general damages. At the commencement of the trial
on 23
January 2024, I was informed that the only aspect in dispute between
the parties is the claim for future loss of income.
Furthermore, it
is not disputed that the plaintiff will suffer a loss of income, it
is the contingencies that has to be applied
in respect of the claim
for future loss of income that is in dispute. The defendant has made
an offer to settle the future loss
of income but the plaintiff is not
amenable to the settlement offer.
[5]
By agreement between the parties and in terms of Rule 38(2) of the
Uniform Rules of
Court, plaintiff’s expert reports were
received by way of affidavit.
The plaintiff did not
adduce any further evidence regarding her claim for loss of future
earnings. The defendant did not present
any evidence during the
trail. T
he legal representatives, Mr van der
Merwe on behalf of the plaintiff and Ms Mkhwanazi on behalf of the
defendant, addressed the
court on the reports filed by the plaintiff
regarding the percentage to be applied in respect of the
contingencies regarding the
future loss of income only.
[6]
The plaintiff is an adult female. She was
47 years of age at the time of the motor vehicle accident. She was
employed as a typist
at the traffic college connected to the
Matjhabeng Municipality, Welkom. After the accident she was
transported to the Welkom Mediclinic
Hospital where her wounds were
cleaned and dressed and x-rays were taken. It is common cause that
the plaintiff sustained the following
injuries during the collision:
6.1
lacerations to her left knee;
6.2
soft tissue injury to her head;
6.3
soft tissue injury to her neck.
[7]
No loss of consciousness was reported. The laceration on her knee was
sutured. The x-rays showed
no fractures but she was admitted for 3
days and received conservative treatment during her stay in hospital.
Plaintiff was discharged
on the 11
th
of March 2019 with
medication and a soft neck collar. She continued complaining of
her neck and on 27 March 2019 a CT-scan
of her neck was performed
which revealed a congenital anomaly of the C1 complex and possible
widening of the C1/2 interval. Her
neck injury was managed with a
neck brace and medication. The plaintiff consulted with Dr Hugo, a
neurosurgeon, for her neck symptoms
and eventually had two series of
facet blocks. According to the plaintiff she did not experience
any relief from her symptoms
following the facet blocks.
[8]
The plaintiff filed the following expert reports:
8.1 Dr
A L Vlok - orthopaedic surgeon;
8.2
Lucindy van Zyl- occupational therapist;
8.3 Dr
E J Jacobs - industrial psychologist;
8.4 Ms
J Valentini - forensic actuary.
[9]
The issue at hand is the percentage contingencies to be applied in
respect of the uninjured and
the injured scenario pertaining to
future loss of earnings. The plaintiff is still employed in the same
position as prior to the
incident. She returned to work after two
months’ recovery leave. She is however, according to the medial
reports and as argued
on her behalf, in a more vulnerable position as
a result of the injuries sustained during the incident. Her work is
mainly computer
related and she is the administrator for the traffic
college. The college had 88 learners during 2021. Her working hours
are 07h30
until 16h00, Mondays to Fridays. Prior to the incident she
earned R12 000.00 per month. She received company contributions
to the value of R7 013.00 per month during 2021. She is the only
typist at the traffic college.
[10]
The plaintiff’s duties are as follows:
10.1
filing, taking/making telephone calls and sending emails;
10.2
keeping attendance registers for the learners;
10.3
making copies of the manuals and study material;
10.4
capturing learners’ results, compiling a statement of results
and certificate information;
10.5
general office administration.
[11]
Since the accident, the plaintiff suffers from the following
complaints:
11.1
headaches on a daily basis on the left side of her head;
11.2
she describes the headaches as pressing in nature;
11.3
the plaintiff scored the intensity of the headaches at 9/10;
11.4
she experiences pain in her neck on the left side and her left
shoulder when typing, when doing elevated
work, when handling heavy
loads (heavier than 5 kg), when doing household chores and at night
when she is sleeping;
11.5
she experiences pain in her left knee with prolonged walking,
prolonged standing (2 hours), when handling
heavy loads, when
climbing stairs and during cold weather. She is no longer able
to wear high heeled shoes and she cannot
run at all.
[12]
Dr A L Vlok, an orthopaedic surgeon practising at Pretoria, opined
that the plaintiff’s neck complaints
are compatible with the
soft tissue neck injury she sustained during the incident. Soft
tissue neck injuries may cause chronic
head and neck symptoms of
varying degrees and even though 40% of patients may have chronic head
and neck symptoms, most of the
symptoms do not result in a major
disability. Chronic head and neck symptoms and the extent to
which they become intrusive
and potentially disabling are determined
by the patient’s ability to manage these symptoms.
[13]
According to Dr Vlok there is a 3% to 10% chance that the plaintiff
may eventually require an anterior decompression
and cervical spine
fusion as a result of the soft tissue neck injury sustained during
the incident should her symptoms fail to
respond to the various
conservative treatments available. The occupational therapist,
L van Zyl, opined that, based on her
findings, the plaintiff is still
suited to her pre-, post-accident and her current work as a typist.
However, her complaints
are justified and she would require
intermittent rest breaks when required to type for prolonged periods.
This impacts negatively
on her productivity and work speed and
therefore renders her disadvantaged within the open labour market
when compared with uninjured
peers. Currently she has a
sympathetic and supportive employer which counts in her favour with
regards to the plaintiff being
able to retain her position at work
even though she needs frequent leave of absence as a result of
headaches and pain in her neck.
[14]
The plaintiff currently has to take intermittent rest breaks due to
pain with a result that she is unable
to complete her daily tasks and
therefore ends up taking work home which she then completes after
hours. The plaintiff takes pain
medication on a daily basis. Mrs van
Zyl discussed the plaintiff’s work situation with her
supervisor, Mr Mokoena, on 20
September 2021 and he reported that
since the accident the plaintiff has taken frequent leave of absence
from work almost on a
weekly basis. He confirmed that she is often
unable to work a full week as a result of the frequent headaches and
pain. Dr Everd
Jacobs, a qualified and practicing industrial
psychologist, opined that the plaintiff is only suitable for
sedentary to light work
demands and cannot be regarded as an equal
competitor in the open labour market. As an uninjured employee
she most likely
would have worked in her current capacity as a
typist/clerk with her current employer up to the age of 65 years.
[15]
The plaintiff will be reluctant to change from her current occupation
as she is already enjoying some sympathy
in her current capacity. Mr
van der Merwe argued that a slightly higher contingency than normal
should be applied on the basis
that the plaintiff is now, as a result
of the injuries sustained in the accident, more vulnerable and is not
an unequal competitor
in the open labour market. The fact that
the plaintiff will be reluctant to change employers might lead to her
earning on
a lower level in her injured capacity. The
plaintiff’s basic income per month amounts to R 16 204.00.
She receives
an annual bonus equal to one month’s salary. The
plaintiff has not suffered a past loss of income.
[16]
The plaintiff presented the evidence of Ms Julie Valentini, an
actuary practising as such at Munro Actuaries,
Cape Town. The actuary
calculated the potential loss of earnings suffered by the plaintiff
due to the accident as at 1 September
2022. The plaintiff’s
uninjured future earnings were calculated at R 4 324 100.00
and her injured future earnings
at the same amount. A 10% contingency
deduction was applied in respect of the uninjured and a 30%
contingency deduction in respect
of her injured loss of earnings.
[17]
The defendant contends that the plaintiff is still employed by the
same employer, she returned to work two
months after the accident and
is able to perform her duties at work. She has not suffered any loss
of income and therefore the
defendant contends that a 15% contingency
in respect of the uninjured loss of income and a 20% contingency in
respect of the injured
loss of income, in other words a so called 5%
“spread” should be applied. The defendant placed on
record that the parties
agreed that the expert reports are what they
purported to be and that same may therefore be handed up by the
plaintiff by means
of affidavit, which Mr van der Merwe did.
[18]
The plaintiff is being sympathetically accommodated by her employer
since she returned to work during 2019.
She has approximately 13
years left before she reaches retirement age, being at age 65. The
fact remains that she has to take regular
breaks from typing and
performing other duties during her workday. Considering all the
above, her residual work capacity is restricted
to sedentary light
parameters of work.
[19]
In Road Accident Fund v Kerridge
[2]
the Supreme Court of Appeal explained the approach to determine
loss of earnings and applicable contingencies as follows:
“
Contingencies are
arbitrary and also highly subjective. It can be described no better
than the oft-quoted passage in Goodall v President
Insurance Co Ltd
where the court said: ‘In the assessment of a proper allowance
for contingencies, arbitrary considerations
must inevitably play a
part, for the art of science of foretelling the future, so
confidently practiced by ancient prophets and
soothsayers, and by
authors of a certain type of almanack, is not numbered among the
qualifications for judicial office’”
[20]
Contingencies are the hazards of life that
normally beset the lives of ordinary people and should therefore,
“by
its very nature, be a process of subjective impression or estimation
rather than objective calculation”
[3]
.
The only reasonable way to compensate the plaintiff for her possible
future loss of earnings in the event of her losing her employment
before retirement age, would be by way of a contingency deduction to
factor in the risk involved.
[21]
I am satisfied that an appropriate contingency deduction to be
applied is a 20% spread between the uninjured
and the injured future
income scenario as contended by Mr van der Merwe. It has to be
kept in mind that should her physical
symptoms of pain worsen with
time and as she ages, the possibility of future cervical spine
surgery may also increase which will
necessitate even more time off
from work. Contingencies of whatever nature, generally serve as a
control mechanism to adjust the
loss to the circumstances of the
individual case in order to achieve justice and fairness to the
parties.
[22]
The actuarial calculation submitted by the plaintiff is as follows:
Capital Value of
Loss of Earnings.
Uninjured
Earnings
Injured
Earnings
Loss
of Earnings
Future
R4 324 100.00
R4 324 100.00
Less contingencies
10.00%
30.00%
R
3 891 690.00
R3
026 870.00
R
864 820.00
TOTAL LOSS OF EARNINGS
R864 820.00
[23]
I am satisfied that the plaintiff should be awarded the amount of R
864 820.00 in respect of future
loss of earnings as per the
calculations by Munro Forensic Actuaries.
[24]
ORDER:
Consequently, I make the
following order:
1.
The Defendant is liable for payment of 100% of the Plaintiff’s
proven or agreed damages arising
from the motor vehicle accident that
occurred on 8 March 2019.
2.
The Defendant is liable for payment to the Plaintiff in the amount of
R 864 820.00 (eight hundred
and sixty- four thousand eight
hundred and twenty rand) hereafter “the capital amount”
in respect of future loss of
income.
3.
The Defendant is ordered to furnish to the Plaintiff an undertaking
in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of
1996
, for 100% of the costs of the future accommodation of the
Plaintiff in a hospital or nursing home or the treatment of or the
rendering
of a service or the supplying of goods to the Plaintiff
arising out of the injuries sustained by the Plaintiff in the motor
vehicle
collision mentioned above, in terms of which undertaking the
Defendant will be obliged to compensate Plaintiff in respect of the
said costs after the costs have been incurred and on proof thereof.
4.
The Defendant shall pay the Plaintiff’s taxed or agreed party
and party costs on the High Court
scale, until date of this order,
including but not limited to the costs set out hereunder:
4.1 The reasonable
qualifying and reservation fees and expenses (if any) of the
following experts:
4.1.1 Dr A L
Vlok (Orthopaedic Surgeon);
4.1.2 Mrs L van Zyl
of Rita van Biljon Occupational Therapists
4.1.3 Dr Everd J
Jacobs (Industrial Psychologist0;
4.1.4 JA Valentini
– Munro Actuaries
5.
The payment provisions in respect of the aforegoing are ordered as
follows:
5.1
Payment of the capital amount shall be made without set-off or
deduction, within 180 calendar days from
date of granting this court
order, directly into the trust account of the Plaintiff’s
attoneys of record by means of
electronic transfer, the
details of which are the following:
Honey Attorneys
Trust
Account
Bank
Nedbank,
Maitland Street, Bloemfontein
Branch code
1023400
Account No.
1[…]
Reference
H L
Buchner/J04078
(please quote
the reference at all times)
5.2
Payment of the taxed or agreed costs shall be made within 180 (one
hundred and eighty) days of agreement
or taxation (the
"due
date")
and shall likewise be paid into the trust account of
the Plaintiff's attorneys of record referred to in 5.1 above
;
6.
Should the capital amount or costs not be paid by the respective due
dates, the Defendant will be liable for
interest at 11.25% (the
statutory rate per annum) compounded, in respect of:
6.1 The capital
amount of the claim calculated from 14 (fourteen) days from the date
of this order;
6.2 The taxed of agreed
costs, calculated from 14 (fourteen) days from taxation,
alternatively date of settlement of such costs.
7.
The Plaintiff’s claim for past hospital and medical expenses is
separated in term of the provisions
of Rule 33(4) of the Uniform
Rules of Court and postponed for later adjudication.
I
VAN RHYN J
On
behalf of the Plaintiff:
Adv.
J van der Merwe
Instructed
by:
Honey
Attorneys
Bloemfontein
On
behalf of the Defendant:
Ms. K
Mkhwanazi
Instructed
by:
State
Attorneys
Bloemfontein
[1]
No 56 of 1996.
[2]
2019 (2) SA 233
(SCA) at par [ 42].
[3]
Shield Ins. Co. Ltd v Booysen
1979 (3) SA 953
(A) at 965G-H.