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[2023] ZAFSHC 216
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Sello v Road Accident Fund (5048/2014) [2023] ZAFSHC 216 (30 May 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no
.
5048/2014
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:YES/NO
In
the matter between:
TSHEPO ALFA OMEGA
SELLO
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
BY
:
I VAN RHYN, J
HEARD
ON
:
24 MAY 2023
DELIVERED:
30 MAY 2023
[1]
The plaintiff instituted action against the defendant in terms of the
provisions of the
Road Accident Fund Act No 56 of 1996 (“the
Act”) for the payment of R1,720 608.72 in damages arising from
a motor vehicle
accident which occurred on 4 June 2011. The
plaintiff, Tshepo Alfa Omega Sello (the “deceased”), a
major male, was
a passenger in motor vehicle with registration
letters and number D[...], driven by Mr. B Mokhothu. The merits were
conceded 100%
in the plaintiff’s favour during July 2015.
[2]
The deceased passed away on 10 April 2022. His death is not related
to the injuries
sustained as a result of the motor vehicle accident.
The trial was set down for hearing on 23, 24 and 26 May 2023. At the
commencement
of the hearing, Mr Jankowitz, counsel appearing on
behalf of the plaintiff, submitted a Notice of Substitution in terms
of the
provisions of Rule 15 of the Uniform Rules of Court whereby
Dineo Anna Folotsi, acting as executrix, has been duly authorized in
terms of the provisions of section 18(3) of the Administration of
Estates Act
[1]
to appear for and
on behalf of the Estate of the late T A O Sello.
[3]
Shortly prior to the hearing of the matter, the plaintiff delivered a
notice in terms
of the provisions of Rule 38(2) that the evidence of
the following experts be adduced at the trial on affidavit: Dr J F
Ziervogel
(Orthopaedic Surgeon), N Potgieter (Occupational
Therapist), Dr E Jacobs (Industrial Psychologist) and J Valentini –
Munro
Forensic Actuaries (Actuary). All the above mentioned
medico-legal and actuary reports were properly served upon the
defendant.
The defendant did not file any medico legal reports and
did not oppose the application in terms of Rule 38(2). I granted the
plaintiff’s
application for the expert witnesses to give
evidence on affidavit.
[4]
This matter was set down for hearing of the remaining issues
regarding the quantum
of the plaintiff’s claim in relation to
past loss of income and general damages. On 23 May 2023 the matter
stood down with
the view of a possible settlement of the plaintiff’s
claims. The parties failed to reach a settlement and arguments were
heard on 24 May 2023 in respect of the disputed issues.
THE
INJURIES SUSTAINED BY THE DECEASED.
[5]
The deceased was 29 years old at the time of the motor vehicle
accident. He lost consciousness
for a while. He was transported
by ambulance to Bongani Hospital in Welkom and
subsequently transferred to the
Pelonomi Hospital, Bloemfontein.
Approximately two weeks later an operation was performed by surgeons
at the Pelonomi Hospital
due to a fracture of the dens of the C2
vertebra in his neck. It was reduced and a C1/2 fusion was performed.
A brace was fitted
to his neck and two weeks later he was discharged
from hospital. The wires used for the fusion broke with the result
that the fusion
served no purpose.
[6]
The deceased sustained a torn labrum of the right shoulder. An
osteophyte at the outer
inferior edge of the acromion was observed
during the medico- legal examination performed by Dr Ziervogel.
X-rays revealed the
narrowing of the joint space of the inferior part
of the gleno-humeral joint. Signs of biceps tendonitis was noted. A
total shoulder
replacement was projected as well as a debridement of
the shoulder joint and repair of the torn labrum of the right
shoulder. Dr
Ziervogel warned that as a security officer there will
always be the possibility of hand to hand combat which may result to
a second
injury to the neck area. The neck area remained compromised
and had limited movement. The deceased also suffered a
laceration and soft tissue injury of the lower right back.
[7]
The deceased lived alone at the time of the accident. He passed Grade
11 at the age
of 21 years and left school. He started working as a
security officer at White Leopard Security in Rustenburg for a period
of approximately
two years where after he was retrenched. He then
worked as a petrol attendant at the BP Garage at Rustenburg for four
months. At
the time of the accident during 2014 he did piece jobs,
usually as a gardener, and earned R150,00 per day. At times he was
only
able to obtain employment on Saturdays. He did not work after
the accident.
[8]
Plaintiff filed a medico-legal report compiled by Nicky Potgieter,
Occupational Therapist,
Kimberley, who conducted an interview with
the deceased on 29 June 2016. He complained of pain in his neck
during bad weather
and when he performed heavy duties. He also
complained of pain of his right shoulder and occasional pain in his
lower back. He
used to play soccer but quit playing after the
accident due to fear of further injury.
[9]
The deceased had no formal training apart from qualifying as a
security officer and
was only suitable for manual labour. Me N
Potgieter opined that the deceased would have been able to perform
light sedentary types
of work. Due to the economic conditions and the
high unemployment rate, chances remained slim for the deceased to
obtain employment
since the accident in 2014.
The
deceased's limited education and skills, and his injuries made it
highly
unlikely
that he would have been able to find suitable employment.
[10]
From the industrial psychologist, Dr Everd Jacobs’s report it
is evident that the deceased’s
loss of income was opined to be
R120,00 per day rather than R150,00 per day. Munro Actuaries in
their report dated 6 April
2023, based on the information provided by
the industrial psychologist, calculated the loss. The actuaries were
instructed to apply
the following contingencies: Uninjured: 5% past
earnings; Injured: no contingencies. The actuaries suggested that the
plaintiff’s
Capital Value of Loss of Earnings are R255 500.00
less 5% contingencies resulting in a total loss of earnings in the
amount of
R 242 725.
[11]
Ms Mkhwanazi appearing on behalf of the defendant argued that the
deceased did not work 5 days
per week at the time of the accident.
Therefore, a 30 % contingency should be applied in respect of past
loss of earnings.
[12]
The problem in the matter at hand relates to the death of the
plaintiff during 2022. The only information available regarding the
deceased’s injuries, academic qualifications and work history,
are to be found in the contents of the medico-legal reports
compiled
subsequent to consultations and examinations performed by the
experts. The experts received instructions from the plaintiff’s
attorney of record. The defendant failed to properly investigate the
situation of the deceased prior to his death.
[13]
Normal contingencies in respect of past loss of income as applied by
the defendant are deductions of
5%.
If
loss of earnings is proven, the loss may be compensated if it is
quantifiable as a diminution in the value of the estate.
[2]
When quantifying a claim for past loss of income, an actuary
often uses actuarial calculations based on proven facts
provided by
the instructing attorney. The role of the actuary is to guide the
court in the calculations to be made. Relying on
its wide judicial
discretion the court will have the final say regarding the
correctness of the assumptions on which these calculations
are based.
[14]
The importance of applying actuarial calculations and their
advantages were discussed in
Southern
Insurance Association v Bailey NO
[3]
where the court referred with approval to the matter of
Hersman
v Shapiro and Company
[4]
at 379
where
Stratford J said as follows:
“
Monetary damage
having been suffered, it is necessary for the Court to assess the
amount and make the best use it can of the evidence
before it. There
are cases where the assessment by the Court is little more than an
estimate; but even so, if it is certain that
pecuniary damage has
been suffered, the Court is bound to award damages”'
[15]
Mr Jankowitz argued that contingencies should be applied at the rate
of 5% in respect of past loss
of earnings, as calculated by the
actuary. I am of the view that there is no need to deviate from the
normal deductions of 5 %
for past loss of earnings.
[16]
Mr
Jankowitz further more contended that general damages in the amount
of R810 000,00 less 25% amounting to R686 250,00
will be a
fair and reasonable award for the non-pecuniary loss suffered by the
deceased as a result of the injuries sustained and
its sequelae.
Ms
Mkwanazi argued that the amount of R600 000.00 awarded for
general damages in the matter of
Cowan
v The Road Accident Fund
[5]
less
an amount of R200 000.00 resulting in an amount of R
400 000,00 will amount to reasonable compensation under
this
heading.
[17]
In
the matter of
Dickson
v SA Mutual
Fire
lnsurance
[6]
,
the
Plaintiff
was
awarded R10 000.00 for general damages for two
cervical
fractures.
In
that
matter, the Plaintiff fractured the C7 and C11 vertebrae and suffered
from a stiff neck. The current
value
of
the award
in
that matter
is
R493
010.00.
[18]
In
Moalahi
v Road Accident Fund
[7]
the
plaintiff, an adult male, injured his neck when the C2 and C3
vertebrae fractured as a result of a motor vehicle accident.
He also suffered injuries to his left elbow, left knee, a head and
back injury. He underwent two operations to his neck. When he
was
discharged from hospital, he could not walk long distances or dress
himself. He suffered from “pins and needles”
in his hands
and feet. For approximately 6 months after his discharge, he was
assisted by family members with caring for himself.
He continued to
experience constant pain, especially in his neck. He remained unable
to perform any tasks that required him to
extend his arms upward
above his head due to the fact that it affected his shoulders and
neck. He was unable to return to his normal
employment and remained
unemployed. An amount of R600 000.00 was awarded in respect of
General Damages in 2021. The current
value of the award amounts to
R643 000.00
[19]
After considering all the above factors
and circumstances, I am of the view that compensation for general
damages in
the
amount of R600 000.00 is to be awarded to the Plaintiff.
Accordingly,
the Plaintiff is awarded the following amounts:
[20]
ORDER
:
1.
The defendant is liable for payment of 100% of the plaintiff’s
damages and is
ordered to compensate the plaintiff in the amount of
R842 725.00 which consists of the following:
Past loss of
earnings
R 242 725.00
General
damages
R
600 000.00
______________
TOTAL
R 842 725.00
2.
Payment of the amount referred to in paragraph 1 above is to be made
in the plaintiff attorney’s
trust account with the following
details:
ACCOUNT HOLDER:
P JOUBERT INCORPORATED
BANK:
ABSA BANK
BRANCH
CODE:
6[...]
TYPE OF
ACCOUNT: TRUST ACCOUNT
ACCOUNT NUMBER:
4[...]
3.
Payment shall be made to the Plaintiff within 180 days of granting
this court
order;
4.
The Defendant shall pay the Plaintiff’s taxed or agreed party
and party costs into the account
mentioned in 2 above, up to and
including the trial dates of 23 and 24 May 2023, for the instructing
and correspondent attorneys,
which costs shall include the qualifying
fees of the following experts:
4.1
Nicky Potgieter;
4.2
JA Valentini – Munro Actuaries
4.3
Dr Everd Jacobs;
4.4
Dr J F Ziervogel.
5.
Payment of the taxed or agreed costs reflected above shall be
effected within 180 (one hundred
and eighty) days of agreement or
taxation (the
"due date")
and shall likewise be paid
to the Plaintiff's attorneys of record referred to in 2 above
;
6.
Should the capital amount or costs not be paid by the respective due
dates, the Defendant
will be liable for interest thereon at the
prescribed rate of interest.
I VAN RHYN J
On behalf of the
Plaintiff:
Adv. I Jankowitz
Instructed by:
Rosendorff Reitz
Barry Attorneys
Bloemfontein
On behalf of the
Defendant:
Ms. K Mkhwanazi
Instructed by:
State Attorneys
Bloemfontein
[1]
Act No 66 of 1965 (as amended).
[2]
Prinsloo v Road Accident Fund
2009 5 SA 406
(SECLD) at 409C-41A
[3]
1984 1 SA 98.
[4]
1926 TPD 367.
[5]
(
17541/2016)
[2020] ZAGPPHC (4 September 2020).
[6]
1977 (2) C&B 725 (C)
[7]
Quantum of Damages VIII, B4-43.