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[2023] ZAFSHC 337
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Petrus v Road Accident Fund (3901/2021) [2023] ZAFSHC 337 (18 August 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no: 3901/2021
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
MOKOETSANA
MOTSAMAI PETRUS
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
[LINK
NUMBER: 5092000]
CORAM:
P R CRONJÉ, AJ
HEARD
ON:
25 JULY 2023
DELIVERED
ON:
18
AUGUST 2023
JUDGMENT
BY:
P
R CRONJÉ, AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 12h00 on 18 August 2023.
INTRODUCTION
[1]
Plaintiff is a major male who instituted action against the Road
Accident Fund (“
the Fund
”) pursuant to a motor
vehicle accident that took place on 13 December 2018 along a road at
Senekal, Free State Province.
Plaintiff was a passenger in one
of the vehicles at the time of the accident.
[2]
The Fund accepted liability for 100% for the Plaintiff’s agreed
or proven damages.
The Plaintiff received an undertaking in
respect of future medical expenses as provided for in
s
17(4)(a)
of
the
Road Accident
Fund Act, 56 of 1996
.
[3]
The only issues to be determined is the past and future loss of
earnings, and general damages.
[4]
The parties agreed that it was not necessary for any experts to
testify under oath and that affidavits
of the experts will be
admitted under Rule 38 of the Uniform Rules of Court. I
requested original affidavits of the experts
and same was filed with
the Registrar of the High Court on 28 July 2023. I am satisfied
that the affidavits comply with the
requirements and same is admitted
as evidence as read with their reports.
[5]
Ms Greyling-Boonzaaier (for the Plaintiff) and Ms Banda (for the
Fund) referred to the various
comments and findings of the respective
experts and case law in support of their submissions. I am indebted
to both for their considered
and able arguments.
REPORT
OF DR AUBREY MAKUA
[6]
He assessed the Plaintiff on 23 May 2022. The Plaintiff
complained of a painful left knee
and ankle. Plaintiff walks
with a limb and the left knee joint had limited flexion. The leg
itself has a diminished power
ratio of
⅖
(two out of five).
The Plaintiff reached maximum medical improvement (MMI) and in
respect of the restricted knee flexion he
found a 12% whole person
impairment (WPI). In respect of post-traumatic mood (stress) disorder
(PTSD), he found a 5% WPI.
The Plaintiff’s total WPI is
therefore 17%. In the serious injury assessment report (RAF.4),
he found that Plaintiff
suffered a serious long-term impairment or
loss of bodily function on the narrative test.
REPORT
OF DR MICHAEL A SHER
[7]
He assessed the Plaintiff on 26 May 2022 and reviewed the Itemohen
hospital notes, Dihlabeng hospital
notes, biographical notes, the
RAF.1 clinical notes and the RAF.1 third party claim form. The
left knee’s lateral tibia
plateau has a fracture, which can be
considered to be a severe injury. The complaints/symptoms of left
knee pain is aggravated
by weight bearing (the Plaintiff was markedly
overweight (reported weight to be 220 kg)) leaving a walking time of
10 minutes.
The Plaintiff’s excessive weight would probably be
considered as a compounding factor. The left knee does not bend
freely. He walks with a marked left leg antalgic limp. Taking into
consideration the Plaintiff’s age, the knee status and
his
weight, the knee will probably regress in the short-term with
increasing symptomatic and functional disability. A knee
fusion
would probably result in a measure of shortening. Conversion of the
fused knee to an arthroplasty when he reaches 60 years
of age would
be a consideration. Due to the fact that he has limited
qualifications and marketable skills, it is unlikely that
he will
find a full-time position.
REPORT
OF MS TALITA DA COSTA
[8]
She is a clinical psychologist with a special interest in
neuropsychology. A psychometric test
and interview was conducted on
23 May 2022. The psychological results revealed that he suffers from
mild depression, severe anxiety,
and PTSD. He had no pre-accident
medical and/or psychological impairments. His quality of life has
been impacted by the accident.
The extent of the post-accident
impairment is found in para 12.1 – 12.4 of her report.
She notes that he worked as
a general worker and is presently
unemployed.
REPORT
OF MS SHARI-LEE FLETCHER
[9]
She is an occupational therapist who conducted tests on 24 May 2022.
The Plaintiff had pain in
the lower left limb, was unable to bear
full weight on the limb and had a significant limp. He will
only be able to perform
some tasks occasionally during a working day,
which include standing, walking, climbing of stairs, half-kneeling
and weight elevated
work. He has limited education and a lack
of marketable skills. Combined with his significant mobility
restrictions, he would
be unemployable in the open labour market. He
would therefore not be able to compete with his peers. It is noted
that allowance
should be made for a loss of earnings in future for
any recommended management procedures and rehabilitation.
REPORT
OF MS LEE LEIBOWITZ
[10]
She is an industrial psychologist who assessed the Plaintiff on 23
May 2022. She took the pre-accident
profile of the Plaintiff
into consideration and states that anticipating the level to which an
individual may have advanced in
his occupation, several aspects play
a role. These include familial background, developmental- and medical
history, the individual’s
socio-economic circumstances, overall
functioning, cognitive-, psychological-, physical- and vocational
history, job performance
and career aspirations, as well as various
external factors such as labour market conditions, the availability
of promotional opportunities,
employment policies, etc.
[11]
His father had a Grade 8 qualification and was employed as a
farmworker. His mother’s highest level
of education is unknown
and she too was a farmworker. His sister had a Grade 10 qualification
and was unemployed. He repeated Grade
2 and 3, completed Grade 11 but
failed Grade 12.
[12]
He has no formal training, nor does he hold a driver’s licence.
When he was still able to work, it
would be for 3 to 4 days per week
as needed
. Whilst working, his duties included general farm
work and planting of seeds. He earned R100.00 per day for each day
worked, and
commencing on 1 December 2018 until date of accident.
Taking his background into consideration as well as his level of
education
and pre-accidental employment history, he would have had to
rely on his physical ability and psychological well-being to remain
competitive.
[13]
With the history of his employment, she opines that he may have
earned between R15 600.00 – R20 800.00
per annum if he worked 3
to 4 days per week. His earnings would have depended on various
factors such as work context, hours worked,
etc. If he worked on the
national minimum wage scale, his earnings would have been around R54
264.60 per annum.
[1]
His
earnings may have progressed to around R72 208.00 per annum by age 45
– 50. He would have received an annual inflated
regulatory
increase until retirement age of 65. She accepts that disregarding
the accident, the Plaintiff would have experienced
periods of
unemployment and fluctuations in earnings during his career. The
Plaintiff represents as an individual who has been
rendered
uncompetitive and vulnerable. His ability to compete for and sustain
employment, has been significantly compromised and
he would remain
largely unemployed.
REPORT
OF MR WIM LOOTS
[14]
He is an actuary and took the report of Ms Leibowitz into
consideration. He applied a 5% contingency
deduction in respect
of pre-accident loss, and a 20% deduction for future loss. It
was not necessary to cap the loss.
[15]
He calculates the value of the loss of earnings as of 1 September
2022, had the loss not occurred, in an
amount of R1 391 387.00 and if
contingencies of 5% and 20% are applied, the loss amounts to R1 124
058.00.
SUBMISSIONS
ON BEHALF OF PLAINTIFF
[16]
Mrs Greyling-Boonzaaier argues that if one considers the decisions of
the SCA, a contingency amount of 0.5%
per annum until date of
retirement is applied. Based thereon, a contingency of 19.5%
and the normal contingency of 5% should
be applied. The
contingency in the actuary’s report of 20% is therefore in line
with the SCA decisions. He had
no high level of education, was
relatively young and it was uncertain what may have happened in
future.
[17]
If he was able to obtain employment he would probably not have
sustained it. From the hospital records
it appears that he
sustained an injury to the same knee after the accident which
exacerbates his challenge to walk. She refers
to the report of
Dr Sher who was of the view that future treatment would not
necessarily improve his condition. The fact
that he struggles
with his weight was a problem
before
he sustained the injury
and he now has challenges in losing weight. She argues for an
alternative contingency of 25% (from
20%). The calculation
would then be R329 598.75 for past loss and at a contingency of 25%
for future loss, he should be granted
R988 796.25. His total loss
would then be R1 058 138.65.
[18]
She submits that the second injury is due to the primary accident
that influenced his balance and made him
unsteady on his feet.
The lateral tib-fib injury amounts to a break into the knee.
She submits that a 50% contingency
would be extremely high. She
submits that an amount of R600 000.00 for general damages would be
appropriate.
SUBMISSIONS
ON BEHALF OF THE FUND
[19]
Ms Banda, for the Fund, refers to a handwritten note of Dr Rantai,
apparently dated 12 March 2020 where it
is noted that
refracturing
took place and o
pen
reduction and internal fixation (
ORIF
)
surgery was done with
reinsertion
of new screws. This is not a result of the accident but a
self-referral. She also notes that Plaintiff is
obese.
The Plaintiff’s employment opportunities in the open labour
market will be significantly compromised because
of his
limited
education
,
lack
of skills
and his
limited
physical capacity
.
I understood her argument to be that if he earns a low salary, he
will not qualify for a minimum wage. She too refers
to the
report of Dr Sher who notes that Plaintiff was markedly overweight,
that there was a previous left knee lateral tibia, and
toe fracture
that extended into the articular surface. This fracture has
healed. In the report of Diagnostic Radiological
Services,
dated 26 May 2022 it is noted that the Plaintiff had a fixation of
the upper tibia and the alignment of the underlying
tibia is
satisfactory. There is no fracture line identified and osteoarthritic
changes are seen. Post-surgery left him with function
and the pain
may be improved to some extent by a rehabilitation regime under the
direction of a
biokineticist
or physiotherapist. She submits that his career ceiling would
have been at 60 years of age.
[20]
There is no certainty that there will be a measure of shortening of
the left limb and if so the amount of
shortening is unknown.
[21]
She too refers to the report of Ms Leibowitz who states that he only
worked for between 3 to 4 days per week
and was not permanently
employed. He received R23.00 per hour. The Plaintiff
would have experienced periods of unemployment
and fluctuations in
earnings during his career and an appropriate contingency deduction
should be applied for this.
ARGUMENTS
ON BEHALF OF THE PLAINTIFF
[22]
Mrs Greyling-Boonzaaier, in respect of general damages, refers to the
injury to the knee, the PTSD, the fact
that he has a limp and the
possibility of a shortened limb. He experiences severe pain.
She refers to
Abrahams
v Road Accident Fund
[2]
where
the Plaintiff suffered a badly commuted proximal right femur
fracture, a fracture of the right patella, a fracture of the
right
distal fibula, a fracture of the right medial malleolus, severe soft
tissue injury to the left hand, secretions in the chest,
a mild
concussive traumatic brain injury. He developed chronic PTSD, chronic
general anxiety disorder, chronic major depressive
disorder, a
chronic social phobia and a pain disorder. The present value would be
R800 000.00.
[23]
In
Mgudlwa
v Road Accident Fund
[3]
,
the Plaintiff sustained an extremely comminated fracture of the lower
end of the left femur with significant adverse effects on
the
functionality of his
legs
(plural),
spine
and
hips
.
The injuries left him with a
deformity
of the proximal end of the left femur, the
left
leg being 5 cm shorter
than the right leg, the
left
femur being 53,5 cm shorter than the left femur
,
the
left
tibia being 5 mm shorter than the right tibia
,
the stiffness on the left knee, the left hip having external rotation
at 90 degrees and its internal rotation stopping at the
neutral
position and the range of movement of the left leg being diminished.
The plaintiff’s left knee is tender, swollen
and has limited
flexion movement at 65 degrees. The discrepancy in the rotation of
the hips is due to a
marked
rotatory deformity at the femur
.
The
spine
has a left lumber scoliosis
.
The plaintiff is compelled to use an axillary crutch in the right
hand because he has a left sided limp. He cannot squat or drive
a
car. He has been subjected to a great deal of discomfort, pain and
suffering. He is
no
longer able to participate in soccer coaching
due to the injuries he sustained. The present award would be R631
000.00.
[24]
In
Schmidt v RAF
[4]
, the
plaintiff sustained
numerous
fractures to all the upper and lower limbs
(both sides) involving the left humerus; the left proximal radius and
ulna at the elbow; the right midshaft radius; and the left
tibia and
fibula, an injury to the right knee with rupture of the anterior
cruciate ligament and the medial ligament as well as
fractures to the
midshaft of the left foot and the metatarsal bones. As a result of
the collision the plaintiff
lost
consciousness
,
which she only regained later. She remained in hospital for six weeks
until her discharge. Her treatment at hospital consisted
of
ventilation
in the intensive care unit
.
She underwent
multiple
surgical procedures including orthopaedic procedures for open
reduction and internal fixation of fractures, debridement
and
suturing of wounds and skin grafting
.
Since her discharge she has had
several
further hospital admissions due to a sepsis
diagnosed in her right knee and for the
removal
of pins from her left shoulder
.
She was
confined
to a wheelchair for approximately 14 months
following the accident and
after
that has been walking with the assistance of a crutch
.
She was re-admitted to hospital for treatment of an infection in her
right knee. It was diagnosed as an MRSA infection and it
was
initially successfully treated and stabilised. After that the
infection on several occasions flared up again. The present
value, even if half of the damages are applicable, would be R650
000.00.
ARGUMENTS
ON BEHALF OF THE FUND
[25]
Ms Banda argues for a contingency of 50% to be applied for past loss
of income which will amount to an amount
of R36 496.00. In
respect of future loss, she furthermore submits that a deduction of
50% in respect of contingencies should
be applied which will leave
his total loss at R695 693.50.
[26]
She refers to
Van
Niekerk v Road Accident Fund
[5]
.
[27]
She argues that R400 000.00 be granted in respect of general
damages. The fact that he fell after the
accident, is not
related to the original injury.
DISCUSSION
[28]
The Fund did not file any expert notices. It elected to, as it may,
accentuate some aspects in the Plaintiff’s
expert reports that
may be of assistance to it. It can be accepted that the Plaintiff
will attempt to claim as much as possible
and that the Fund would
attempt to pay as little as possible.
[6]
Klopper, in Motor Law
[7]
, aptly
captured this as follows:
“
In
a recently reported judgment it was found that the nature of the
damages suffered by the plaintiff in his personal […]
capacity
[ies] lay somewhere between the optimistic picture painted by the
defendant’s experts, and the pessimistic view
of the experts
who appeared for the plaintiff. In respect of general damages the
court reiterated that these, by their very nature,
were not capable
of being measured in money. Comparisons with other awards granted in
similar cases could be instructive but not
decisive. Psychological
injuries could form the subject of a damages claim provided that the
injury was a detectable psychological
injury.”
[29]
The estimation, especially in respect of general damages and future
loss, has notoriously been difficult.
[8]
The
vicissitudes
of
life is unpredictable.
[9]
The
Court nonetheless has to do its best to make that estimation.
[30]
In respect of loss of income or other patrimonial damages, Klopper
supra
states:
“
In
the latter instance, actuarial calculations will probably be required
to quantify the claim. Whether mere arithmetical calculations
as
opposed to actuarial calculations are required, the point to be made
is that the
calculations are made
upon the facts of each case and that no two awards made will ever be
the same
. Once the facts are
established the amounts involved and to be awarded can be determined
without much difficulty and with utmost
certainty.
Previous
awards may play no part whatsoever since each matter has to be
resolved with reference to its own facts
.”
[31]
In respect of calculations, the Court in
M
S v Road Accident Fund
[10]
held:
“
[42]
The locus classicus as to the value of actuarial expert
opinion in assessing damages is Southern
Insurance
Association Ltd v Bailey NO
[25]
where
Nicholas JA said the following :
“
Where
the method of actuarial computation is adopted in assessing damages
for loss of earning capacity, it does not mean that the
trial Judge
is ‘tied down by inexorable actuarial calculations’. He
has ‘a large discretion to award what he
considers right’.
One of the elements in exercising that discretion is the making of a
discount for ‘contingencies’
or differently put the
‘vicissitudes of life’. These include such matters as the
possibility that the plaintiff may
in the result have less than a
‘normal’ expectation of life; and that he may experience
periods of unemployment by
reason of incapacity due to illness or
accident, or to labour unrest or general economic conditions. The
amount of any discount
may vary, depending upon the circumstances of
the case”
[26]
.
[43]
Zulman JA, with reference to various authorities including Southern
Assurance said as follows
in Road Accident Fund v
Guedes
[27]
:
"The
calculation of the quantum of a future amount,
such as loss of earning capacity, is not, as I have
already indicated, a matter of exact mathematical calculation.
By its nature, such an enquiry is speculative
and a court can therefore only make an estimate of the
present value of the loss that is often a very
rough estimate (see, for example, Southern Insurance Association Ltd
v Bailey NO) Courts have adopted the approach that, in order
to
assist in such a calculation, an actuarial computation is a
useful basis for establishing the quantum of damages”.”
[32]
When considering actuarial reports, I refer to
Morris
v Road Accident Fund
[11]
:
[17]
The general principle applicable to the assessment of damages for
loss of earnings capacity is that the Plaintiff
must prove that the
reduction in earning capacity gives rise to pecuniary
loss. In Prinsloo v RAF in dealing with this
principle,
Chetty J stated as follows:-
"A
person's all-round capacity to earn money consists, inter
alia, of an individual's talent, skill, including his/her
present position and plans for the future and, of course, external
factors over which a person has no control, for instance, in
casu,
considerations of equity. A Court has to construct and compare two
hypothetical models of the Plaintiff's earning after the
date on
which he/she sustained the injury. In casu, the Court must calculate,
on the one hand, the total present monetary value
of all that the
Plaintiff would have been capable of bringing into her patrimony had
she not been injured, and on the other, the
total present monetary
value of all that the Plaintiff would be able to bring into her
Patrimony whilst handicapped by her injury.
When the two hypothetical
totals have been compared, the shortfall in value (if any) is the
extent of the patrimonial loss. At
the same time, the evidence may
establish that an injury may in fact have no appreciable effect on
earning capacity, in which event
the damage under this would be nil."
[18]
On the aspect of contingencies, Nicholas JA in Southern
Insurance Association v Bailey N.O .[3] stated
the following:-
“
In
the case where a Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the
first
approach offers any advantage over the second. On the contrary, while
the result of an actuarial computation may be no more
than an
'informal guess', it has the advantage of an attempt to ascertain the
value of what was lost on a logical basis."
[33]
The Plaintiff presented with limited career experience and
achievements (Grade 11). He worked between 3 –
4 days per
week
[12]
as
required
and had limited experience and skills other than general farm work
and planting of seeds. He did not enjoy any security in employment.
In the letter from Mr Nel for whom he would occasionally work, it is
stated that the Plaintiff was not permanently employed but
was given
so-called “piece jobs” from time to time. His family’s
achievements, although not an absolute prediction
of his career
prospects does not indicate that he would necessarily have achieved
better. There are off course always exceptions
but I can find none in
his case. I believe that a higher contingency in respect of past loss
should be applied. I apply a contingency
of 15% in respect of his
past loss.
[34]
In respect of his future loss I take the same factors that I
considered in the calculation of past loss into
consideration. I add
thereto that he suffers from obesity. This should not be construed as
blame but one of the factors that not
only may impede him from
competing in the open market at the level where he was employed but
as a factor that could contribute
to further accidents and
impairments. Mrs Greyling-Boonzaaier argued that at a 25%
contingency, at worst (if the Court does not
consider 20%), should be
applied. Mr Banda argued for the 50% contingency.
[35]
I am of the view that a 15% contingency would be fair in respect of
past loss of income. In respect of future
loss of income,
I apply a 35%
contingency. This means that he is awarded R62 043.20 in respect
of past loss of income and R856 956.75
in respect of future loss
of income.
[36]
I am satisfied that the Plaintiff qualifies for general damages on
the narrative test and I did not understand
Ms Banda to argue
otherwise.
[37]
In arriving at a fair and reasonable amount for general damages, the
Courts have applied a method that has
been summarised by Klopper
supra
as follows:
“
The
nature of a non-patrimonial loss has been explained with reference to
the judgment in Hoffa NO v SA Mutual Fire & General
Insurance Co Ltd 1965 (2) SA 944 (A) in
paragraph 1.1.1 supra.
It
follows, if one has regard to the nature of the loss sought to be
redressed, that no two claims will ever be alike, and no two
awards
ever the same.
The
objective sought to be achieved in, and the underlying principle of
making, an award of damages is that the claimant must, as
far as is
reasonably possible, be placed in the position he or she would have
been in had he or she not suffered the damages complained
of. It is
not an easy task to assess general damages in the form of
non-patrimonial loss.
In
arriving at what is regarded as a fair amount, when considering the
principle involved regard could be had to previous awards
made in
comparable cases.
In
order for the comparisons to be valid, the following principles are
applied:
•
only
the general award and not a comparison of every detail are taken into
account to determine an appropriate amount; [Protea Assurance
v
Lamb 1971 (1) SA 530 (A).]
•
comparison
to previous awards is not the method of assessing non-patrimonial
damage and only serves as a guide, and cannot be used
in such a
manner so as to exclude or fetter the discretion of the court;
[Protea Assurance v Lamb 1971 (1) SA 530 (A); Lessing
v Sentraboer 1981 3 Corbett and Buchanan 272 (O) 281; Krugell
v Shield Versekeringsmaatskappy 1982 (4) SA 95 (T);
3 Corbett and Buchanan 287 299; Van Niekerk v Constantia
Insurance 1983 3 Corbett and Buchanan 386 (E) 390 ff; De
Jongh v Du Pisanie NO
[2004] 2 All SA
565
(SCA), 2005 (5) SA 457 (SCA) par
[64].]
•
the
facts of the cases compared must be identical to the extent that the
comparison is valid;
•
despite
any previous award the principles that apply to the assessment of
non-patrimonial damage should nonetheless be applied in
the
assessment;
•
the
conclusion arrived at after reference to prior awards can be tested
using the pattern of other previous awards provided that
the injury
is of a comparable nature;
•
the
awards made in previous cases should be adjusted for inflation to
reflect present monetary values; [Protea Assurance v
Lamb 1971 (1) SA 530 (A).]
•
non-comparable
cases can be used to test the award resulting from the use of awards
in prior cases; [Lessing v Sentraboer 1981
3 Corbett and
Buchanan 272 (O) 281; Krugell v Shield
Versekeringsmaatskappy 1982 (4) SA 95 (T); 3
Corbett and Buchanan 287 299; Van Niekerk v Constantia
Insurance 1983 3 Corbett and Buchanan 386 (E) 390 ff; De
Jongh v Du Pisanie NO
[2004] 2 All SA
565
(SCA), 2005 (5) SA 457 (SCA) par
[64].]
•
although
a court is not bound by previous comparable awards, an award may not
be strikingly disparate to prior awards without sufficient
justification; [Road Accident Fund v Delport
NO 2006 (3) SA 172 (SCA).]
•
a
court of appeal will only interfere with an award if such award is
excessive having regard to the pattern of previous awards.
[Road
Accident Fund v Marunga 2003 (5) SA 164 (SCA); Road
Accident Fund v Delport NO 2006 (3) SA 172 (SCA).]”
[38]
A Court is entitled to take cognisance of the fact that the treatment
and management of impairments improve
as time goes by. Klopper
supra
states:
“
Where
previous comparable awards are considered, regard should be had to
the improvement of medical services and equipment, medicine
and care
etc which may impact upon awards in respect of loss of amenities,
life expectancy and pain and suffering. Larger amounts
will probably
be awarded in respect of the patrimonial elements of the award, by
reason of the effect of inflation and also as
a result of the more
expensive, but at the same time, more sophisticated and effective
treatment, which will render the victim’s
existence less
intolerable and more endurable. The non-monetary value of modern
equipment and treatment is to be found in the victim’s
improved
existence and the enjoyment of life’s amenities and in an
appropriate case will have the effect of reducing the
amount of a
previous award, since the loss of amenities might not then be as
great as it had been previously.”
[39]
Injuries that has played a major role in awarding higher damages to
Plaintiffs has consistently been, inter
alia, shortening of limbs,
severe and chronic pain, severe impairment of movement, spine
injuries, severe psychological dysfunction,
and brain injury.
[40]
The Plaintiff suffers from pain that appears to be manageable, mild
depression, PTSD, and impairment of mobility.
There is a change that
his left limb may be shortened. The Fund’s urgent attention to
its obligation to perform, pursuant
to an offer of a s 17
undertaking, is of critical importance to a Plaintiff’s
experience of the sequela of the accident and
recovery.
[41]
In
Modise
obo Minor v Road Accident Fund
[13]
Davis
J held:
“
I
have often, both in judgments and in judicial case management
meetings conducted in court, expressed the view that, the sooner
merits are conceded in circumstances where they should properly be
conceded, such as in the present case and the sooner an undertaking
to cover medical and related costs is furnished in terms of
Section
17(4)(a)
of
the
Road
Accident Fund Act 56 of 1996
in
instances where it is clear that the injured person would be in need
of future medical care and attention,
the
sooner such a person, be it a Plaintiff or, as in this case, a minor,
can receive such treatment or afford to do so. This will
not only
benefit the injured person and fulfil some of the objects of the Act,
but it will also enable a plaintiff to begin to
satisfy the general
onus of mitigating one's Damages. In that way, not only will
plaintiffs and injured persons experience
beneficial relief in
respect of their compromised or diminished amenities of life, but
they might be assisted on the road to recovery,
be it by way of
surgical or scar-removing procedures, or psychiatric or remedial
educational therapy, to name but a few examples
.
(own
emphasis)
[42]
Having considered the injuries, the case law, and the submissions
made by the respective parties, I am of
the view that general damages
in the amount of R450 00.00 would be fair.
[43]
The Plaintiff was successful in his claims and should be awarded his
costs.
[44]
I am satisfied that the use of experts was justified and necessary
and the Fund should be liable for those
costs.
[45]
I therefore make the following order.
ORDER
1.
The Defendant pays R62 043.00 in respect of past loss of income
to the Plaintiff.
2.
The Defendant pays R856 956.00 in respect of future loss of
income of the Plaintiff.
3.
The Defendant pays R450 000.00 in respect of general damages to
the Plaintiff.
4.
The Defendant pays the costs of obtaining the reports, including
addendum reports and joint minutes, if any, of the following
experts:
4.1
Dr Aubrey Makua
4.2
Dr Michael A Sher
4.3
Ms Talita Da Costa
4.4
Ms Shari-Lee Fletcher
4.5
Ms Lee Leibowitz
4.6
Mr Wim Loots
5.
The Defendant pays the reasonable taxable reservation and/or
preparation fees, if any,
of the experts referred to in paragraph 4
above.
6.
The Defendant pays Plaintiff's taxed or agreed costs.
7. In
the event that the amount in respect of costs is not agreed upon,
then:
7.1
The Plaintiff shall serve the notice of taxation on the Defendant's
attorney of record; and
7.2
The Plaintiff shall allow the Defendant 14 (Fourteen) court days to
make payment of the taxed
costs.
PR
CRONJé, AJ
On
behalf of the Plaintiff:
Adv
Greyling-Boonzaaier
MED
Attorneys
Bloemfontein
On
behalf of the Defendant:
Adv
P Banda
State
Attorney
Bloemfontein
[1]
The current minimum wage rate is R23.19 per ordinary hour of work
effective from 1 March 2022.
[2]
(1531/2010)
[2012] ZAECPEHC 37 (29 May 2012)
[3]
(818/2002)
[2010] ZAECMHC 13 (5 February 2010)
[4]
[2007]
JOL 18865 (W)
[5]
(2922/17)
[2021] ZAECPEHC 66 (8 October 2021)
[6]
See:
Modise
obo Minor v Road Accident Fund
(10329/2019) [2019] ZAGPPHC 399; 2020 (1) SA 221 (GP) (12 August
2019), para 4.11
[7]
Klopper,
H.B., RAF Practitioners Guide, Division D Quantum, LexisNexis
[8]
See:
Bailey
v Southern Insurance Co Ltd
1984
(1) SA 98
(A);
RAF
v CK
(1024/2017)
[2018]
ZASCA 151
(01
November 2018) para 25;
Phiri
v Road Accident Fund
(34481/2018)
[2021] ZAGPJHC 848 (23 December 2021)
[9]
Hugo
v Road Accident Fund
(32007/12) [2014] ZAGPPHC 764 (2 October 2014)
[10]
(10133/2018)
[2019] ZAGPJHC 84;
[2019] 3 All SA 626
(GJ) (25 March 2019)
[11]
(99303/15)
[2018] ZAGPPHC 486 (12 July 2018)
[12]
This
was not confirmed in the letter of Mr Nel.
[13]
(10329/2019)
[2019] ZAGPPHC 399; 2020 (1) SA 221 (GP) (12 August 2019)