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2023
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[2023] ZAFSHC 24
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M.F.M v Road Accident Fund (1164/2018) [2023] ZAFSHC 24 (30 January 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
The HIGH COURT OF
SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case Number 1164/2018
Reportable: yes/no
Circulate to other
Judges: yes/no
Circulate
to Magistrates: yes/no
In
the matter between:
M[...]
F[...]
M[...]
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
CORAM:
BERRY, AJ
HEARD
ON:
25 JANUARY 2023
DELIVERED
ON:
This
judgment was handed down electronically by email to the parties'
representatives and by release to SAFLII. The date and time
for
hand-down is deemed to be 15h00 on 30 January 2023.
JUDGEMENT
BY:
BERRY,
AJ
JUDGEMENT
[1]
Plaintiff
was
involved in an accident where she was a passenger on the back of a
motorcycle on 23 November 2014 and was hospitalised until
03 December
2014.
[2]
Plaintiff
suffered from a head injury, left elbow injury, right knee injury and
a right elbow injury.
[3]
The Plaintiff has no recollection of the accident.
[4]
The Defendant conceded merits and provided an undertaking in terms of
Sec
17(4)(a)
of Act 56 of 1996
for
future medical expenses.
[5]
The Defendant accepted the Plaintiff’s medical expert reports
and it was agreed
that the Plaintiff did not have to testify.
[6]
The claim for past medical expenses was abandoned, thus the only
issues in dispute
are the claims for general damages and loss of
earnings.
[7]
The Plaintiff
claims of R424 320.00 for past and future loss of earnings and
R1 000 000.00 for general damages.
[8]
The Defendant
did not submit any expert reports.
[9]
The following expert reports for the Plaintiff were admitted.
Dr
DK Mutyabu Neurosurgeon
Dr
Mbhele
Neuropsychologist
Ria
Van Biljon
Occupational Therapist
Dr
JP Marin
Orthopaedic Surgeon
DR
AC Strydom Industrial
Psychologist
J
Sauer
Actuary
[10]
Counsel for the Plaintiff submitted that the physical injuries formed
a minor part of the claim
for general damages and focused more on the
brain injuries suffered by the Plaintiff.
[11]
Dr Mutyaba states that the Plaintiff was admitted to hospital with a
traumatic head injury and
bleeding and her Glasgow Coma Scale was
12/15. This injury is confirmed by the radiological picture and the
alteration in her level
of consciousness at admission.
[12]
The Plaintiff suffers from a change in personality, headaches, poor
memory and lower back pain.
[13]
The Plaintiff suffers neurocognitive at neuropsychological deficits.
[14]
The Plaintiff has a 10% risk of developing post traumatic epilepsy
and twice the risk of developing
Alzheimer's disease or dementia,
compared to normal controls.
[15]
Dr Mbhele states that the brain injury causes poor memory, poor
concentration and inattentiveness,
as well as mood swings and anxiety
in the Plaintiff. This resulted in the Plaintiff being dismissed from
her employment.
[16]
Dr Mbhele conducted a mental status examination and found that the
Plaintiff suffers from attention
and concentration deficiencies and
the test had to be abandoned because the Plaintiff became too tired
and could not cope with
the test.
[17]
The Plaintiff was given a three-hour break but could not complete the
test.
[18]
Dr Mbhele conducted the following Neurological Tests:
-
Complex Attentional Ability.
-
Executive functioning.
-
Memory and Learning.
[19]
The neuropsychological findings revealed the following neurocognitive
deficits:
-
Poor auditory memory and learning problems.
-
Attentional problems.
-
Poor working memory.
[20]
Dr Mbhele is of the opinion that the Plaintiff had average
intelligence prior to the accident.
[21]
Dr Mbhele diagnosed the patient to suffer from:
-
Mild Neurocognitive Disorder due to the traumatic brain injury.
-
Post traumatic stress disorder.
-
Major depressive disorder.
[22]
Dr Mbhele is of the opinion that the Plaintiff’s condition will
not improve.
[23]
Van Biljon administered several neurocognitive tests and refers to
the Mail Sort Subtest of the
Therapists Portable Assessment
Laboratory, which closely resembles the cognitive requirements of
working as an assistant librarian
- a position for which the
Plaintiff has applied.
[24]
The Plaintiff had to file mail in pigeonholes according to numbers.
She had to remind the Plaintiff
several times to file the mail below
and not above the corresponding number. She had to help the Plaintiff
identify errors that
during the initial stages of the test, despite
assistance. The Plaintiff made 8 errors versus 1 allowable and her
working speed
fell at 42%. Test results indicate that she works
slowly and inaccurately.
[25]
The Valpar 6 – independent problem-solving work sample test was
administered. This work
sample is composed of one exercise that
assesses the ability to perform work task, requiring the visual
comparison and proper selection
of a number of extract colour
designs. Specifically, the work sample requires significant motor
co-ordination, reasoning, form,
perception, clerical perception,
colour discrimination, manual dexterity, finger dexterity and
intelligence. These abilities are
basic to success in many jobs.
[26]
The Plaintiff made 13 errors versus an allowable 3 in this test.
[27]
The Plaintiff attended a library assistant learnership programme from
June 2019 to March 2020
where her duties included dusting shelves,
packing away books, locating books using the library software,
stamping books with due
dates for books to be returned, assisting
people in preparing curriculum vitae’s, make photocopies for
clients, and assist
students with gathering information for projects.
She was however unable to secure full time employment.
[28]
Van Biljon is of the opinion that the Plaintiff would not have been
able to retain her employment
considering her current neurocognitive
profile.
[29]
Dr Strydom states that considering the Plaintiff’s education
and employment history, plus
in absence of proof of earnings, that
the Plaintiff’s earnings would range between the median of an
unskilled workers’
earnings and the median of semi- skilled
workers’ earnings in her mid-forties, where after normal
inflationary increases
should be applied.
[29]
No proof of income could be provided as the Plaintiff’s former
employer did not want to
co-operate.
[31]
Both parties referred to case law as precedent for the amount general
damages that should be
awarded. I do not repeat the injuries listed
in every case, save to state that the injuries are similar to those
suffered by the
Plaintiff.
[32]
The Plaintiff referred me to the following cases and the value of the
damages awarded, after
adjustment for inflation to 2023.
Sterris
v
RAF
12167/07 QOD VOL V1 B4-26
R500 000.00
Makapula
v
RAF
1635/2007 QOD VOL V1 B4-26
R575 000.00
Donough
v
RAF
8962/2010 QOD VOL V1 B4-56
R623 000.00
Modan
v
RAF
14435/2009
QOD VOL V1 A4-123
R638 000.00
Van
Der Mescht
v
RAF
12182/2008 QOD VOL V1 J2-42
R765 000.00
Tobias
v RAF
4934/2009
QOD VOL V1 B4-65
R860 000.00
[33]
The Defendant referred me to the following cases and the value of the
damages awarded, after
adjustment for inflation to 2023.
Zibi
v RAF
2010
(6B4) QOD (ECG)
R224 100.00
Fries
v RAF
2002
(5B4) QOD 88 (C)
R259 100.00
M
v RAF
2019
ZAGPPHC 588 (GP)
R420 100.00
[34]
This brings me to contingencies.
[35]
The Plaintiff submitted an actuarial report which used R2 500.00 per
month as the basic income
the Plaintiff earned prior to the accident.
This figure is based on the recommendation of Dr Strydom.
[36]
The Defendant
disputed
that any past loss of earnings was proven as no evidence of the
Plaintiff’s income could be provided.
[37]
I am satisfied that the e-mail provided from the previous employer,
which states that she does
not want to be involved in this matter in
any manner whatsoever, proves that the Plaintiff was indeed employed
prior to the accident.
[38]
Seeing that the Plaintiff was employed as a shop assistant, I am
willing to accept that she earned
R2 500.00 per month, prior to the
accident.
[39]
The actuarial calculations applied a 5% contingency to pre- and post-
morbid to past loss of
earnings and calculate the Plaintiffs loss to
be R166 543.00.
[40]
A 15% contingency was applied to pre-morbid future earnings and a 35%
contingency to post morbid,
bringing the loss to R257 777.00.
[41]
Counsel for the Plaintiff argued that an even higher contingency
should be applied to post-morbid
future loss as it was proven that
the Plaintiff have failed her learnership as an assistant librarian.
[42]
Counsel for the Defendant argued that a 30% contingency should be
applied to post-morbid future
loss as it was illustrated that the
Plaintiff attended training and thus the risk of her remaining
unemployed is lower. This would
bring the Plaintiff’s future
loss of earnings to R185 550.00.
[43]
I can see no reason why the calculations used by the actuary should
not be accepted.
[44]
The following order is made:
1.
The Defendant
is liable to pay 100% of the Plaintiff’s damages.
2.
The Defendant shall pay the Plaintiff the sum of R994 320.00 in
respect of loss
of earnings and earning capacity and general damages
made up as follows:
Loss
of earnings and earning capacity
R424 320.00
General
Damages
R570 000.00
TOTAL
R994 320.00
3.
The Defendant shall pay the abovementioned amount into the account of
the Plaintiff’s
attorney.
Account
holder
:
VZLR Inc
Branch
:
ABSA Business Bank Hillcrest
Branch
Code
:
6[…]
Type
of account
:
Trust Account
Account
Number
:
3[…]
Reference
:
M[…]
4.
The Defendant shall furnish the Plaintiff with an undertaking in
terms of Sec
17(4)(a) of Act 56 of 1996,
in
respect of future accommodation of the Plaintiff in a hospital,
nursing home, or treatment of, or the rendering of a service,
or
supplying of goods of a medical and non- medical nature to the
Plaintiff, after the costs have been incurred and on submission
of
proof thereof, arising out of the injuries sustained in the
collision which occurred on 23 November 2014.
5.
If the Defendant does not make payment within 180 days from the date
of this
order the Defendant will be liable to pay interest on the
capital amount at the moratory rate, compounded and calculated 14
days
from the date of this order.
6.
The Defendant shall pay the Plaintiff’s taxed, or agreed cost
on party
and party scale, up to and including the date off this
order, including the cost of counsel.
7.
The Defendant
shall pay the qualifying fees of the following expert witnesses:
Dr
DK Mutyabu Neurosurgeon
Dr
Mbhele
Neuropsychologist
Ria
Van Biljon
Occupational Therapist
Dr
JP Marin
Orthopaedic Surgeon
DR
AC Strydom Industrial
Psychologist
J
Sauer
Actuary
AP
BERRY, AJ
APPEARANCES:
For
the Plaintiff:
Adv. M Steenkamp
Instructed
by:
VZLR Incorporated, Pretoria
c/o Du
Plooy Attorneys, Bloemfontein
For
the Defendant:
M Booysen
Instructed
by:
The Road Accident Fund
Bloemfontein