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[2023] ZAFSHC 461
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Moloi v Road Accident Fund (5470/2018) [2023] ZAFSHC 461 (17 November 2023)

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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
no.:  5470/2018
In
the matter between:
MM
MOLOI
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Claim
No: 560[…]
Link
No: 447[…]
CORAM:
VAN ZYL, J
HEARD
ON:
14 & 15 MARCH 2023; 16 & 17 MAY 2023
DELIVERED
ON:
17 NOVEMBER 2023
[1]
The plaintiff issued summons against the defendant for payment of
damages which she
suffered as a result of a motor vehicle accident
which occurred in the district of Bloemfontein on 4 February 2018
between a motorcycle,
at the time driven by the plaintiff and an
unknown motor vehicle (“the insured vehicle”), at the
time driven by an
unknown driver (“the insured driver”).
[2]
In terms of the particulars of claim the accident was caused as a
result of the sole
negligence of the insured driver, having been
negligent in one or more of the following respects:
“
4.1
He travelled at a high speed under the circumstances;
4.2
He omitted to keep a proper lookout;
4.3
He omitted to keep his motor vehicle under proper control;
4.4
He failed to comply with the statutory traffic rules;
4.5
He failed to avoid an accident when by the exercising of reasonable
care, he
should and could have done so;
4.6
He failed to adequately apply the controls and other mechanisms of
his motor
vehicle in such a way that it does not pose a threat to
other road users;
4.7
He failed to adequately consider the presence, movement and clearly
visible
movements of the other motor vehicles;
4.8
He failed to consider the rights of other road users.”
[3]
In the defendant`s plea it is denied that the insured driver was
negligent and it
is alleged that accident was caused as a result of
the sole negligence of the plaintiff in that:
“
4.2.1
She failed to keep proper control of her motorcycle;
4.2.2
She drove her motorcycle recklessly thereby causing the accident;
4.2.3
She drove her motorcycle at an excessive speed and thereby causing
the accident;
4.2.4
She failed to timeously apply breaks and thereby causing the
accident;
4.2.5
She failed to note that her motorcycle was in motion gear;
4.2.6
She failed to avoid the collision when she should and could have done
so.”
The defendant pleaded in
the alternative that should it be found that the insured driver was
casually negligent, then and in that
event the accident was caused by
the contributory negligence of the plaintiff.
[4]
The matter was on the roll for the adjudication of both the merits
and the
quantum.
I will first deal with the merits of
the action.
AD
MERITS:
[5]
At the commencement of the trial the parties indicated that the
occurrence of the
accident is not in dispute, but that the element of
negligence is in dispute.
The
plaintiff`s witnesses in respect of the merits:
Ms
MM Moloi:
[6]
The
plaintiff, Ms Moloi
, is an adult female born on
1[…] S[…] 1977. She testified that on Sunday, 4
February 2018, she was driving her motorcycle,
a Kawasaki VN900, with
registration letters- and number FBB […]. At the time she had
been driving the motorcycle since 2014.
She was on her way home after
having attended a funeral. It was between 12h00 and 13h00 in the
afternoon.  She was driving
on a tarred road of which the
surface was dry, which road is in the suburb Grassland, Bloemfontein.
The road has two lanes, one
lane in each direction.  Motor
vehicles were parked on both sides of the road.  The said
vehicles were not parked in
areas which were designated for parking,
therefore, partly in the respective lanes and consequently partly in
the way of other
vehicles which travel on the road.  The
plaintiff estimates that she was driving at between 40 and 60km per
hour and travelled
with three other motorcyclists.  They all
attended the same funeral.  They were travelling in single
formation, the one
behind the other.  The plaintiff was
travelling in front and at the time of the accident, there were four
motorcycles in the
said formation, one of which was being driven by
Mr Neo Winston Morgan. The plaintiff was approaching a curve in the
road, the
direction of which was towards her right-hand side. The
insured vehicle then approached from the front, travelling in the
opposite
direction. It was a Volkswagen Polo. At the time when the
plaintiff saw the insured vehicle, it was veering into her lane. In
an
attempt to avoid an accident with the insured vehicle, she swerved
to her left, which resulted in her colliding with one of the

stationary vehicles parked at the side of the road.  The insured
vehicle failed to stop after the accident.
[7]
The plaintiff testified that she could not have swerved to her
right-hand side, since
the curve in the road ahead prevented her from
being able to see whether other vehicles may be approaching from the
front.
She further testified that if she had not swerved to her
left, she would have collided with the oncoming insured vehicle.
[8]
The plaintiff testified that the insured vehicle was travelling at a
high speed.
When she first saw the oncoming vehicle as it was
veering into her lane, the distance between herself and the insured
vehicle was
approximately the length of one motor vehicle.
[9]
The plaintiff lost consciousness immediately after the accident and
she was told by
the other bikers that she was unconscious for
approximately five minutes.  Other people who also attended the
funeral, were
also at the scene.  According to the plaintiff
there were no police officers at the scene.  She was taken to
Pelonomi
Hospital by ambulance.
[10]
Two police officers came to see her at hospital the following day at
approximately 22h00.
She does not remember their names.
According to her they only wanted to know where the accident occurred
and she told them.
They did not ask her how the accident occurred and
she did not give them any version or statement in this regard.
[11]
An accident report consisting of 4 pages contained in the bundle
titled “Merits”,
at p. 9 – 12 thereof, dated 5
February 2018 at 22h00, which report reflects a stamp of the
Bloemspruit Police Station, was
dealt with in the plaintiff`s
evidence in chief. The said report reflects the following under the
heading “
brief description of the accident
”:
“
It is alleged by
the driver of the motor vehicle/bike that after they line up prepare
to drive away, the driver of a motorbike was
not aware that the bike
is on gear 1.  When she apply the accelerator it speed off with
her, then she swerved to avoid head-on
collision with the oncoming
vehicle, that when she crashed into a vehicle parked the side of the
road. Part of funeral proceed.”
[
sic
].
[12]
In her evidence in chief the plaintiff testified that she did not
provide the aforesaid version
of the accident to the police.   When
they visited her in hospital, they only asked her where the accident
occurred.
She denied that the accident occurred in the manner
described in the accident report.  The plaintiff testified that
she saw
the accident report for the first time after she was
discharged from hospital on 28 February 2018.
[13]
During her evidence in chief the plaintiff was also questioned about
a sketch contained in the
accident report under the heading
“
accident-sketch
”. The sketch depicts that the
plaintiff was travelling in the right-hand lane, hence on the wrong
side of the road.
When the insured vehicle approached from the
front, she was in the vehicle’s lane and swerved to the left,
colliding with
a stationary vehicle. The plaintiff denied the
correctness of the sketch. She also denied that she gave such a
version of the accident
to the police. The police never asked her how
the accident occurred.  She further testified that the sketch
also wrongly depicts
the road to be straight, failing to reflect the
curve in the road right ahead of where the accident occurred.
[14]
The plaintiff further testified that she was not present when the
accident report was completed.
When she eventually saw the accident
report and saw the incorrect information contained therein with
regard to how the accident
occurred, she went to the Bloemspruit
police station and enquired about the name of the person who compiled
the report.  She
was told that he had not reported for duty that
day.  Since she had difficulty walking at the time due to the
injuries she
suffered as a result of the accident, she only went to
the police station once.  She did, however, phoned the police
station
more than once, but without any success.
[15]
During cross-examination she testified that she testified that she
considers herself to have
been an experienced motorcycle driver at
the time.
[16]
The plaintiff explained during cross-examination that when she saw
the insured vehicle for the
first time as it appeared from the curve
in the road, it was already veering into her lane.  During
re-examination she testified
that at the time when she swerved to her
left, more than half of the insured vehicle was already in her lane.
[17]
When asked during cross-examination why she did not hoot or flash her
lights, the plaintiff testified
“
it happened so quickly, I
was saving myself by swerving to the left”
.
[18]
In further cross-examination it was put to her that the accident in
fact occurred in the manner
described in the accident report, which
the plaintiff denied. She also denied that the report was completed
in her presence. It
was put to the plaintiff that the police officer
will testify that the version reflected in the report is the version
which was
obtained from her, which she denied.  It was further
put to the plaintiff that the said police officer will testify that
she
was present when the report was completed, which she also denied.
[19]
In response to a question posed by myself, the plaintiff testified
that they drove away from
the relevant house after the funeral, which
house was in the same street as where the accident occurred.
From where they
left the said house up to the point where the
accident occurred, their group of motorcyclists were not stationary
again.
Mr NW Morgan:
[20]
The plaintiff called a witness,
Mr Neo Winston Morgan
.
At the day of the accident, he was one of the motorcyclists who drove
with the plaintiff.  He was the last one in the
formation. Mr
Morgan witnessed the accident. The essence of his version of the
relevant events and how the accident occurred, corresponded
with the
plaintiff’s version. I therefore do not deem it necessary to
repeat the totality of his evidence. He did, however,
testified that
according to him they were travelling at about 40 – 50 km per
hour and not at 60km per hour.
[21]
Mr Morgan testified that the plaintiff and him have been members of
the same motorcyclists’/
bikers’ club since 2014.
He considers her to be a good motorcycle driver.  Mr Morgan
further testified that he
has been riding motorcycles since 2003.
Had he been in the plaintiff’s position, he would have done the
same, namely
to have swerved to the left-hand side, in an attempt to
have prevented an accident.  He also explained that the
plaintiff
could not have swerved to the right line or to her
right-hand side, since there was a curve in the road right ahead of
them and
one was unable to see or know what traffic may be coming
from the front. Mr Norman therefore considers the plaintiff to have
acted
reasonably in the circumstances.
[22]
Mr Morgan also testified that an ambulance came to the scene.
They also called the police,
who enquired where the accident
happened, whether somebody had been injured and then indicated that
if no vehicle was blocking
the road, the police will not be attending
the scene.  The police advised them that they should only report
the accident at
a police station. The police, therefore, did not
attend the scene. Mr Morgan was not at any stage phoned by the police
for a statement
regarding the accident.  With regard to the
description of the accident and the accident-sketch which appear on
the accident
report, Mr Morgan testified that it was not a correct
reflection of how the accident occurred.
[23]
During cross-examination Mr Morgan testified that at the time when
the plaintiff swerved to her
left-hand side, almost the whole of the
insured vehicle was in her lane. In his opinion, had the plaintiff
not served to the left,
the worst would have happened.  After
the plaintiff swerved to her left-hand side, the insured driver
returned to his own
lane.  Had it not done so, the insured
vehicle would have collided with all the motorcyclists.
[24]
That concluded the case for the plaintiff on the merits.
The
defendant`s witnesses in respect of the merits:
[25]
The defendant called two witnesses, namely sergeant TK Atopo and
sergeant NM Ndashe.
Sergeant
TK Atopo:
[26]
Sergeant Atopo
testified that during 4 February 2018 he
was an officer based at the Bloemspruit Community Service Centre.
Presently he is
a sergeant.
[27]
With reference to the accident report, Sergeant Atopo confirmed that
the said report was signed
by him and reflects his service number
underneath his signature at p. 4 of the report. He testified that the
details of the plaintiff
and that of her motorcycle as reflected at
p. 1 of the report, and the parts marked not applicable at p. 2 of
the report, were
completed by him.  However, the accident-sketch
and the brief description of the accident, reflected at p. 3 of the
report,
had not been completed by him.  He testified that he
does not know who drew the accident-sketch and wrote the brief
description
of the accident on the report.
[28]
He confirmed that the police did not attend the accident scene and
that he cannot remember whether
he visited the plaintiff in hospital.
[29]
Sergeant testified that he can remember that the plaintiff attended
the police station, together
with a male person, and indicated that
she wanted to amend the accident report.  He distinctly
remembered the plaintiff, since
her hands were broken and from her
elbows downwards, her arms were bandaged or plaster of paris.
Sergeant Ndashe called him and
gave him an accident report in the
presence of the plaintiff and her male friend and indicated to him,
sergeant Atopo, that the
initial accident report has to be amended.
Sergeant Atopo then completed p. 1, 2 and 4 of the report which was
handed to
him by constable Ndashe. Sergeant Atopo testified that he
does not know whether p. 3 of the report which contains the
description
of the accident and the accident-sketch was also
completed on that day or not, since according to what he heard, the
plaintiff
previously came to the police station, but did not find him
there. Sergeant Atopo then signed the report without reading it to
the plaintiff because due to the fact that she was in the presence of
constable Ndashe, he thought that the plaintiff already knew
what the
contents of the document entail.  He himself did not read it
either before he signed it.  When he signed the
report, he was
under the impression that it is the amended report he was signing and
that there was another, earlier accident report
as well.
[30]
During cross-examination when sergeant Atoko was asked whether he
could remember in what respects
the plaintiff wanted the report to be
changed, he testified that he thinks that it was the accident-sketch
and the description
of the accident which she wanted to be amended.
[31]
Ms Banda, who appeared on behalf of the defendant, found sergeant
Atopo’s evidence presented
during his evidence in chief to be
antagonistic and contrary to what he told her during their
consultation and contrary to the
version on behalf of the defendant.
She even resorted to request that the witness be declared a hostile
witness.
[32]
After the completion of sergeant Atopo’s evidence, which was at
approximately 10h20 on
15 March 2023, Ms Banda indicated that given
the evidence of sergeant Atopo and new information about another
police officer having
completed the accident report and the possible
existence of another accident report, she requests a postponement in
order for her
to trace officer Ndashe to call her as a witness.
When I enquired from Ms Banda as to until when she is requesting the
postponement,
she randomly indicated that she would request the
matter to be postponed for two months. I was not willing to merely
grant the
requested postponement without any basis for such a long
period of postponement. I consequently enquired from Ms Banda whether
she had made any enquiries about the whereabouts or availability of
officer Ndashe prior to requesting the two-month postponement,

whether it may not be possible that officer Ndashe may be available
to testify on that very same day. Ms Banda indicated that she
made no
such enquiries. I consequently indicated that I am willing to let the
matter stand down until 14h00 in order to grant Ms
Banda an
opportunity to make the necessary enquiries about officer’s
Ndashe’s availability to be called as a witness.
When the
court reconvened at 14h00, officer Ndashe was indeed present in court
and Ms Banda indicated that she was ready to present
her evidence.
[33
Sergeant Ndashe indicated that she is employed at the Bloemspruit
police station, Bloemfontein.
During 2018 she was working at
the accident enquiries at the said police station.  Her duties
entailed that she had to go
to the CSC, check the accident reports as
to whether they had been completed and if so, signed them off and at
the end of the month,
take the said reports to the traffic
department. She has since obtained the rank of sergeant.
[34]
She also explained the procedure which was followed when a person
came to the CSC at the police
station to report an accident.
The said person will give the details of the accident to the police
officer and the report
will then be completed by the police officer
or by the person who was reporting the accident.  Thereafter the
contents thereof
will be confirmed with the relevant person and the
officer will sign the report.
[35]
Sergeant Ndashe testified that she did not complete the relevant
accident report.  She only
inspected it after it had been
completed, like she had to do with all the accident reports, where
after she signed the report at
p. 4 thereof, next to the signature of
the officer who supposedly completed the report, merely to confirm
that she had inspected
it and that it had been completed.
Sergeant Ndashe did not complete the report herself and consequently
did not complete
the accident-sketch and the description of the
accident thereon either.
[36]
During cross-examination she testified that she does not know who
gave the description of the
accident and/or who wrote it down and
made the accident-sketch on the report. When asked whether she knows
the plaintiff, she testified
in the negative and also testified that
she cannot remember having ever spoken to her.  Mr Cross, who
appeared on behalf of
the plaintiff, then put it to her that sergeant
Atopo testified that he remembers that the plaintiff came to the
police station
to amend an accident report and that she, sergeant
Ndashe, gave Sergeant Atopo the apparent amended report to sign.
Sergeant Ndashe
denied same and testified that she knows nothing
about such an incident. She further testified that she only works
until 16h00
and since the accident report appears to have been signed
by sergeant Atopo at approximately 22h00, she, sergeant Ndashe, would

definitely not have been there.  She consequently stated that
the version of sergeant Atopo cannot be the truth.
[37]
That concluded the case for the defendant on the merits.
Legal
principles:
[38]
It is trite that the onus rests on the plaintiff to proof negligence
on a balance of probabilities.
I consequently have to determine
whether the driver of the insured vehicle was negligent in causing
the accident.
[39]
In his heads of argument, Mr Cross, who appeared on behalf of the
plaintiff, referred to and
relied on the following case law:
1.
Sedumemanyatela v Road Accident Fund
(65678/2012)
(2014) ZAGPPHC 445 (30 May 2014), in which judgment it was stated
that even when an approaching vehicle is on its
incorrect side of the
road, the driver on his correct side may assume that the former will
return timeously to its correct side.
His assumption, however,
does not entitle a driver on the correct side of the road to remain
passive in the face of threatening
danger.  As soon as the
danger of a collision becomes evident, he is under a duty to take
reasonable steps to avert the accident.
2.
Road Accident Fund v Grobler
2007 (6) SA 230
(SCA), in
which judgment it was held as follows at paras [9] and [12]:
“
[9]
It is clear from the evidence that the respondent was plunged by the
insured driver's negligence into a situation of sudden
emergency,
that he had no more than a second within which to escape that
emergency, and that he effectively was given a choice
between facing
the danger, or veering away from it and hoping that it would not
follow him. He did the latter.
[12]
When a person is confronted with a sudden emergency not of his own
doing, it is, in my view, wrong to examine meticulously
the options
taken by him to avoid the accident, in the light of after-acquired
knowledge, and to hold that because he took the
wrong option, he was
negligent. The test is whether the conduct of the respondent fell
short of what a reasonable person would
have done in the same
circumstances.”
3.
Ntsala v Mutual and Federal Insurance Co Ltd
1996 (2)
SA 184
(T) at 192 G – 193 A, where the court held as follows:
“
Where the driver
of a vehicle suddenly finds himself in a situation of eminent danger,
not of his own doing, and reacts thereto
and possibly takes the wrong
option, it cannot be said that he is negligent unless it can be shown
that no reasonable man would
so have acted. It must be remembered
that with a sudden confrontation of danger the driver only has a
split-second or a second
to consider the pros and cons before he acts
and surely cannot be blamed for exercising the option which resulted
in a collision.
Van
der Heever J (as he then was) in
Cooper v Armstrong
1939
OPD 140
at 148 said the following:
'Where
a plaintiff is put in jeopardy by the unexpected and patently
wrongful conduct of the defendant, it seems to me irrational

meticulously to examine his reactions in the placid atmosphere of the
Court in the light of after-acquired knowledge; to hold that,
had he
but taken such and such a step, the accident would have been avoided,
and that consequently he also was negligent. To do
so would be to
ignore the penal element in actions on delict and to punish
a possible error of judgment as severely as, if
not more
severely than, the most callous disregard of the safety of others.'
In
this instance I am of the opinion that, if the driver of the insured
vehicle was in fact acting in a sudden emergency, he took
the proper
and obvious course by swerving to the left. If he then loses control
of his vehicle or if in panic he swerves back onto
the tarmac and a
collision follows, he cannot be faulted and held to be
negligent. There is therefore no merit in this submission
by counsel
for the plaintiffs.”
Evaluation
of the evidence:
[40]
The plaintiff presented her evidence in a chronological and clear
manner, without contradicting herself.
Her evidence was in all
material respects substantially corroborated by the witness, Mr Neo
Winston Morgan.
[41]
With regard to the two police officers who were called as witnesses
on behalf of the defendant, the credibility
of sergeant Atoko is very
questionable considering what happened between him and Ms Banda
during the presentation of his evidence
in chief. He and sergeant
Ndashe also contradicted each other in material respects with regard
to the events described by sergeant
Atopo pertaining to the alleged
amendment of the accident report in the presence of the plaintiff and
sergeant Ndashe.
[42]
In addition, neither of the two police officers attended the scene of
the accident and neither consulted
with the plaintiff after the
accident. They were also not the authors of the brief description of
the accident which appears in
the accident report and did not draw
the accident-sketch contained in the said report. In fact, it is
completely unknown who the
author was and where or how he/she
obtained the information contained in the description and depicted on
the sketch. They consequently
bear no personal knowledge thereof.
[43]
Mr Cross consequently submitted that those two parts of the accident
report constitute inadmissible hearsay
evidence and therefore cannot
and should not be considered in the adjudication of this matter.
[44]
Ms Banda, on the other hand, submitted that in exercising the
discretion conferred upon me in terms of
section 3(1)(c)
of the
Law
of Evidence Amendment Act, 45 of 1988
, the aforesaid hearsay evidence
should be admitted on the basis that it is in the interest of justice
to do so. In her heads of
argument, she presented detailed arguments
in support of her submission. I have duly considered her arguments.
However, when I
have regard to the factors set out in the said
section 3(1)(c)
, there is in my opinion no basis upon which I am or
can be of the opinion that it is in the interest of justice to admit
the said
evidence into evidence. On the evidence before court we do
not even know who the author of the description of the accident and
the accident- sketch was, let alone the reason why he/she did not
testify. Even if he said parts of the accident report were to
be
admitted into evidence, it will carry absolutely no probative value
in the circumstances. It will be severely prejudicial the
plaintiff
to admit it into evidence and expect her to have an explanation for
the said version, in circumstances where the defendant
itself is not
even in a position to give an explanation for the origin thereof. The
said version in any event seems very improbable
in the circumstances.
The evidence of the plaintiff, in response to a question by myself,
was that the group of motorcyclists were
not stationary again after
they left the house up to the point where the accident occurred. They
were consequently not preparing
to pull away at the point where the
accident occurred. If they were preparing to pull away, as stated in
the description in the
accident report, and the plaintiff applied the
accelerator of the motorcycle, it would mean that she intended to
pull away, for
purposes of which the motorcycle would have been put
in “gear 1” to enable her to pull away. It would
therefore not
have caught her off-guard, especially also in view of
the evidence that she is an experienced motorcyclist.
[45]
I consequently find that the description of the accident and the
accident-sketch contained and depicted in
the accident report,
constitute inadmissible hearsay evidence and is to be excluded from
the evidence to be considered for the
adjudication of this matter.
[46]
The evidence of the plaintiff, as corroborated by Mr Morgan, has
consequently not been gainsaid and stands
uncontested by evidence to
the contrary. There is in my view no reason why I should not accept
their evidence, especially in respect
of how the accident occurred.
Since the insured driver is unknown and his evidence could therefore
not have been presented, there
is no explanation before court why the
insured driver veered into the lane of the plaintiff. I consequently
find that the driver
of the insured vehicle was negligent by having
veered into the lane of travel of oncoming traffic, therefore the
lain in which
the plaintiff was entitled to drive, which negligence
caused the accident.
Contributory
negligence:
[47]
The question which now has to be considered is whether there was
contributory negligence on the side of the
plaintiff in causing the
accident.
[48]
Ms Banda submitted that the plaintiff was contributory negligent in
causing the accident since she
was travelling at a speed of 40 –
60 km/h, in circumstances where a speed of 60 km/h was too high
according to the evidence
of Mr Morgan. She furthermore failed to
hoot and flash her lights to alert the driver of the insured vehicle
that he was in his
incorrect lane.
[49]
Considering the circumstances immediately before the accident, the
plaintiff testified that that when she
first saw the insured vehicle,
it was already only the distance of about the length of one motor
vehicle from her. The curve in
the road prevented her from being able
to see the vehicle at an earlier stage. The plaintiff was faced with
a situation where she
had to make a sudden decision in a split of a
second. Ordinarily, a driver does not anticipate another to drive in
the lane of
oncoming traffic especially when there is another vehicle
approaching from the opposite direction, like she was approaching the

insured vehicle.
[50]
The plaintiff in her evidence specifically testified that everything
happened too fast for her
to have hooted or flashed her lights.
[51]
It would have been suicidal for the plaintiff to assume that the
driver of the insured vehicle
would move back to his lane. She had to
take measures to avoid the collision then and there. In the
circumstances I consider her
decision to have swerved to the het
left-hand side in order to avoid a head-on collision with the insured
vehicle was a reasonable
one in the circumstances, as also testified
by Mr Morgan. See
Sedumemanyatela v Road Accident Fund,
supra.
[52]
When one considers the question whether the plaintiff could or should
have swerved just enough
not to hit the parked motor vehicle on the
left-hand side of the road, one must do so as a reasonable man placed
in the position
of the plaintiff. She found herself confronted with a
situation of sudden emergency. In the circumstances she cannot be
blamed
for the fact that she took that option and collided with the
parked vehicle.  See
Ntsala v Mutual and Federal insurance
Co Ltd
,
supra.
She could not have swerved to her
right-hand side because there could have   been a vehicle
approaching from the front
around the curve in the road and this
would have meant a head-on collision with another vehicle. As such,
the only reasonable option
for her in the circumstances was to have
swerved to the left-hand side.
[53]
With regard to the issue of 60 km/h, I did not understand Mr Morgan`s
evidence to mean that if
the plaintiff was driving at 60 km/h it
would have been too fast, in the sense of being dangerous in itself
or constituting dangerous
or negligent driving. I understood his
evidence in chief to have been that the plaintiff`s estimation of 60
km/h, is too high an
estimation – the group were not driving at
60 km/h, keeping in mind that he was driving with the group. In his
cross-examination
he testified that if had she been travelling at 60
km/h, she would not have been able to avoid a collision with the
insured vehicle;
hence, she was driving slower than 60 km/h.
[54]
In the circumstances I agree with the submission of Mr Cross that the
defendant failed to prove any contributory
negligence on the side of
the plaintiff in causing the accident.
Conclusion
on the merits:
[55]
The negligence of the insured driver was the sole cause of the
accident and the defendant is to be held 100%
liable for the damages
which the plaintiff prove she suffered as a result of the accident.
AD
QUANTUM:
Particulars
of claim:
[56]
In the particulars of claim the plaintiff claimed damages in respect
of the following:
“
6.1
Pain and discomfort.
6.2
Loss of amenities of life.
6.3
Had to undergo medical treatment.
6.4
May have a loss of earning/earning capacity in future.”
[57]
On 15 June 2021, the plaintiff filed a notice to amend her
particulars of claim with regard to
the total sum of the damages
claimed to be R6,813,470.00. In terms of the amended particulars of
claim this amount is calculated
as follows:
“
7.1
Past medical and hospital expenses
R5,000.00
7.2
Estimated future medical treatment
R1,000,000.00
7.3
Past loss of income
R1,882,665.00
7.4
Estimated future loss of income
R5,033,674.00
7.5
MINUS:  effect of RAF cap
-R2,107,869.00
7.6
General damages
R1,000,000.00”
[58]
The parties are
ad idem
that since the plaintiff was treated
at provincial facilities, no damages were suffered in respect of past
medical and hospital
expenses.
[59]
With regard to future medical expenses, the parties were
ad idem
that it will be compensated by way of an undertaking in terms of
section 17(4) of the Road Accident Fund Act, 56 of 1996 (“the

Act”).
General
damages:
[60]
In the plaintiff`s heads of argument, Mr Cross dealt with the
principles pertaining to the determination
of general damages and
also referred to case law which he submitted is comparable to the
present matter and submitted in conclusion
that an amount of R
1 000 000.00 would be just and equitable compensation for
the general damages the plaintiff suffered.
[61]
In response to the aforesaid, Ms Banda submitted in the defendant`s
heads of argument that in
the circumstances of the present matter
where the where the defendant has not objected to or rejected the
plaintiff`s RAF FORM
4 by Dr Marin and Dr Van Heerden (Plastic
Surgeon), the court does not have jurisdiction to adjudicate the
plaintiff`s claim for
general damages.
[62
In support of her aforesaid submission, Ms Banda,
inter alia,
referred to section 17(1)(b) of the Act which contains the
following proviso:
“
Provided that the
obligation of the Fund to compensate a third party for non-pecuniary
loss shall be limited to compensation for
a serious injury as
contemplated in subsection (1A) and shall be paid by way of a lump
sum.”
[63]
The said subsection 17(1)(A) determines as follows:
“
(1A)
(a)
Assessment
of a serious injury shall be based on a
prescribed
method
adopted
after consultation with medical service providers and shall be
reasonable in ensuring that injuries are assessed in relation
to the
circumstances of the third party. (My emphasis)
(b)
The
assessment shall be carried out by a medical practitioner registered
as such under the Health Professions Act, 1974 (
Act
56 of 1974
).”
[64]
Ms Banda correctly pointed the following out in the defendant`s heads
of argument:
“
7.2  In terms
of Regulation 3 (1) (a) a third party who wishes to claim
compensation for non-pecuniary loss shall submit himself
or herself
to an assessment by a medical practitioner in accordance with these
Regulations.
7.3
Regulation 3 (3) (a) provides that a third party whose injury has
been assessed in terms of these Regulations
shall obtain from the
medical practitioner concerned a serious injury assessment report.
7.4
Regulation   3 (3) (c )- The
Fund or an agent shall only be obliged to compensate a third party
for non-pecuniary loss
as provided in the Act if a claim is supported
by a serious injury assessment report submitted in terms of the Act
and these Regulations
and
the Fund or an agent is satisfied that the
injury has been correctly assessed as serious in terms of the method
provided in these
Regulations.
(d)  lf the Fund
or an agent is not satisfied that the injury has been correctly
assessed, the Fund or an agent must:
(i)  reject the
serious injury assessment report and furnish the third party with
reasons for the rejection; or
(ii) direct that the
third party submit himself or herself, at the cost of the Fund or an
agent, to a further assessment to ascertain
whether the injury is
serious, in terms of the method set out in these Regulations, by a
medical practitioner designated by the
Fund or an agent.
(e) The Fund or an
agent must either accept the further assessment or dispute the
further assessment in the manner provided in these
Regulations.”
(My emphasis)
[65]
In
RAF Practitioners Guide,
H. B. Klopper, Last
Updated: May 2023 - SI 46 at Page A – 50(3) – Page A
– 50(4) the following relevant
principles are stated:
“
The
time for the RAF to respond to the submission of a RAF 4 serious
injury report has been fixed at 120 days. Failure by the RAF
to react
within the 120 days, will result in the RAF 4 not being accepted.
[In
terms of a new regulation 3(3)(
d
)(ii). The regulation is not
retrospective.]
The
determination of whether a serious injury has been sustained must be
done as prescribed in the regulation. A court is not able
to do such
an assessment and until such assessment has been made and the
claimant has shown that he has sustained a serious injury,
a
claimant’s right to recover non-patrimonial loss from the RAF
is suspended. Where there were two RAF 4 assessments, one
of which
was rejected but the other admitted by the RAF during a pre-trial
conference, the second assessment thus admitted remains
valid and
cannot subsequently be rejected. It is also uncertain whether a
failure to reject, can result in applications for review
but
a
mandamus
compelling the RAF to decide can be
obtained. Failure of the RAF to comply with a court order in this
regard, does not have the
effect that the injuries are then deemed to
be serious. A plaintiff’s remedy is a formal review in terms of
PAJA after
full exhaustion of all internal appeal processes in
terms of reg 3 by referral with a RAF 5 to the appeal tribunal of the
Health
Professions Council.
[
Road
Accident Fund v Oupa William Lebeko
(802/11)
[2012] ZASCA
159
;
Road Accident Fund v Duma and three related cases
(Health Professions Council of South Africa as
Amicus
Curiae
)
[2012] ZASCA 169
,
[2013] 1 All SA 543
(SCA).
Also see Selman: “Much ado about Duma:
RAF v Duma and
three related cases
[2013] 1 All SA 543
(SCA)”
August 2013
De Rebus
55. See
Van Heerden v
Road Accident Fund
(6644/2011) [2014] ZAGPPHC 958;
Zaina
v Road Accident Fund
(CC55528/2015) [2017] ZAGPPHC 592 (25
August 2017);
Mokhomong v Road Accident Fund
[2021]
ZAGPPHC 670;
Makuapane v Road Accident Fund
(9077/2022)
[2023] ZAGPPHC 15 (19 January 2023).]
…
However,
where the RAF does not accept the determination of its own expert, a
court is not empowered to rely on the thus disputed
determination to
make an award of general damages and the matter must be dealt with
according to the prescripts of regulation 3.
[
Faria
v Road Accident Fund
(2210/12) [2013] ZAGPJHC 63 reversed on
appeal – see
Road Accident Fund v Faria
(567/2013)
[2014] ZASCA 65
; 2014 (6) SA 19 (SCA).]
Where
the inaction of the RAF results in doubt, whether it has accepted or
rejected the RAF 4 assessment,
a court is not entitled to proceed
to consider general damages
. The appropriate remedy is either an
appeal to the Appeal Tribunal or an application in terms of the PAJA
3 of 2000.
[
Matabane
obo M v Road Accident Fund
(2014/31190)
[2015] ZAGPJHC 248 (30 October 2015) applying
Road
Accident Fund v Duma and three related cases
(
Health
Professions Council of South Africa as
Amicus
Curiae) 2013 (6) SA 9 (SCA).]  (My
emphasis)
[66]
Ms Banda also referred to applicable case law in the defendant`s
heads of argument.
[67]
In the circumstances I agree with the contention of Ms Banda that I
do not presently have the jurisdiction
to adjudicate the plaintiff`s
claim for general damages. I consequently consider it apposite that
the said claim be postponed to
the pre-trial role.
Loss
of income: Evidence presented on behalf of the plaintiff:
[68]
Although I have thoroughly considered all the evidence presented by
the experts, read in conjunction
with their respective reports, I do
not intend to deal with all their evidence in detail. I will be
restricting myself to their
main findings:
Dr
JP Marin: Orthopaedic Surgeon:
[69]
The qualifications and experience of Dr Marin was not in dispute. His
Medico-Legal Report was
received as Exhibit “A”.
[70]
Form the said report it is evident that he examined the plaintiff on
31 January 2020.
[71]
In respect of his diagnosis Dr Marin indicated the following in his
report:
“
7.6.1 Bilateral
distal radial (wrist) …resulting in:
7.6.1.1
Painful instrumentation in both wrists
7.6.1.2
Residual bilateral wrist pain
7.6.1.3
Decreased range of movement with dorsi- and plantar flexion in both
wrists
7.6.2 Left tibial
plateau fracture with:
7.6.2.1
Painful instrumentation
7.6.2.2
Residual knee pain
7.6.3 Disfigurement”
[72]
Dr Marin testified that the plaintiff remains symptomatic and
continues to suffer pain in both
her wrists, as well as her left
knee. The pain will progressively increase over time due to the
degenerative nature of the injuries.
[73]
Dr Marin was very adamant about the progressive degeneration which
will occur in the wrists and
the left knee of the plaintiff, since
fractures in joints like in this instance are degenerative injuries.
The knee is a weight
bearing joint which makes it even worse.
[74]
Dr Marin testified that there are signs of post-traumatic
osteoarthritis (with a high probability
for the degeneration in her
wrists and left knee to progress to end- stage osteoarthritis) of the
wrist joints and left knee and
that she would require a left total
knee replacement and arthrodesis/fusion of both wrists.
[75]
According to Dr Marin the plaintiff must be placed in a permanent
light duty/sedentary work.
[76]
The plaintiff was not limited in her choice of jobs in the future
prior to the accident.
[77]
Dr Marin testified that the plaintiff's bilateral wrist and left knee
injuries had a profound
impact on her amenities of life, productivity
and working ability and will continue to do so in future.
[78]
According to Dr Marin if the plaintiff were to lose her current
employment, her ability to secure
any form of alternative employment
will be decreased due to the debilitating effects of the injuries on
her physical abilities.
With the progression of degeneration in her
wrists and left knee, her productivity will decrease.
[79]
He stated that the plaintiff has become an unfair competitor in the
open labour market.
[80]
According to Dr Marin, from an orthopaedic perspective, even if
accommodated, provision
must be made for 10 (ten) years early
retirement.
[81]
Since the plaintiff cannot do heavy lifting and repetitive work
involving her wrists and left
knee like she did before the accident,
the plaintiff is no longer suited to driving as she was before the
accident.
[82]
According to Dr Marin, the plaintiff indicated to him that she
resigned from her previous employment
due to personal reasons, but
that her main issue was driving close to 200 km to work every day
which caused her wrists and knee
to experience extra pain as a result
of the injuries she suffered. He confirmed that the driving,
especially with a vehicle which
does not have an automatic
transmission, will definitely cause her knee to experience pain.
[83]
During cross-examination he confirmed that his report is
stale/outdated since he examined the
plaintiff on 31 January 2020,
whilst he only testified in court on 16 May 2023.
Ms
Claire Hearne: Clinical Psychologist:
[84]
Ms Claire Hearne gave evidence and compiled a report about the
plaintiff, dated 25 March 2020,
as a result of her consultation with
the plaintiff held on 25 March 2020. The report was received as
Exhibit “B”.
[85]
The plaintiff`s one sister was murdered during 2003 and her brother
passed away during 2020,
which caused her to become depressed. A
health related incident during 2016 also caused her to become very
depressed, but she has
since come to terms with it.
[86]
Ms Hearne testified that the plaintiff became depressed due to her
work struggles as she had
to travel a total of over 200 km per day.
The plaintiff subsequently resigned due to the pain she suffered in
both her hands/wrists
and left knee caused by the travelling.
[87]
According to Ms Hearne the plaintiff was experiencing symptoms of
moderate depression, anxiety
and PTSD which were directly as a result
of the accident. Ms Hearne explained that pre-accident trauma and
post-accident loss would
make the plaintiff less resilient to deal
with the effects of the accident which would therefore have had a
more considerable effect
on her.
[88]
The plaintiff's chronic pain exacerbated her depression and anxiety
and negatively impacted upon
her motivation across all activities of
daily living.
[89]
Ms Hearne opined that the plaintiff may have limited employment
opportunities compared to her
pre-accident scenario due to her
physical limitations and emotional dysfunction, most notably due to
the PTSD.
[90]
She testified that the plaintiff is at risk of experiencing
despondency and fluctuating motivation
and commitment   in
her work environment, due to the extra physical and emotional effort
required in completing work
tasks particularly on awareness of her
dysfunction. She stated that the plaintiff`s physical discomforts may
also trigger traumatic
recollections which would make her emotionally
vulnerable in the workplace.
[91]
She stated that the plaintiff had become socially withdrawn when
compared to before the accident.
[92]
Ms Hearne explained that poor stress and frustration tolerance could
place significant relationships
at risk, including family, social and
work environments and her mood symptoms would also impact upon the
quality of her interpersonal
relationships, motivation and
productivity.
[93]
She testified that the plaintiff's psychological difficulties render
her a vulnerable individual
which would impact upon her occupational
functioning.
[94]
When asked in evidence in chief whether a re-assessment should not
have been done considering
the date of the present assessment, Ms
Hearne testified that although she cannot state whether the plaintiff
is presently still
depressed or suffering from anxiety, it should be
understood that symptoms which one experienced as the result of a
previous traumatic
incident, can be triggered and caused to resurface
by a subsequent traumatic incident, even if the subsequent incident
occurs 20
years later. Therefore, the symptoms of anxiety, depression
and PTSD which the plaintiff suffered from as a direct result of the

accident, will continue to make her less-resilient to deal with any
subsequent trauma in future.
[95]
During cross-examination Ms Banda put it to Ms Hearne that usually a
reassessment is done after
two years, to which Ms Hearne responded
that she cannot say whether a re-assessment of the plaintiff would in
any way assist and/or
change her present opinion. She persisted with
her opinion that the plaintiff will continue to be less stress and
intolerance resilient
as a result of the accident.
Ms
Gouws: Occupational Therapist:
[96]
Ms Gouws/Stroebel testified that the assessment reflected in her
report was done on 4 April 2023
and the report is dated 14 April
2023, which report was received as Exhibit “C”.
[97]
The plaintiff remains symptomatic with regard to painful wrists, left
knee pain and swelling
of her left lower leg.  She is also still
experiencing functional challenges as a result of her injuries, which
negatively
impact on her productivity and efficiency at work. The
plaintiff`s knee pain has since also been causing secondary pain,
stiffness
and discomfort in her lower back.
[98]
Ms Gouws opined that the plaintiff's vocational capacity is reduced
due to the injuries she sustained
in the accident.
[99]
The plaintiff is significantly impaired as a result of the accident,
considering her physical
limitations, psychological and
emotional difficulties and a consequent need for extensive
accommodations
which may typically not be of a reasonable nature to
the majority of employers.
[100]
The plaintiff completed grade 12 and thereafter obtained a
Diploma in Executive Secretarial
Studies and a B Tech Forensic
Investigation degree at Unisa.
[101]
At the time of the accident she was employed as Area Leader at the
Free State Gambling, Liquor and Tourism Authority.
After an absence
of 2 months after the accident, she returned to her duties as Area
Leader. She did not suffer a loss of income
during this time period.
[102]
The plaintiff experienced difficulty coping with her job demands
after the accident and subsequently resigned
at the end of December
2019.
[103]
The plaintiff managed to find employment in March 2023 at the SAPS as
a Forensic Analyst (currently working in
a shadowing/training
capacity). Her current work can be categorized as sedentary to light
work, but as soon as she becomes fully
trained she will be required
to do more driving and attend crime scenes. Her work will effectively
become a lot more demanding
than presently.
[104]
Ms Gouws testified the plaintiff's salary as a Forensic Analyst (R26
000.00 plus benefits per month) is significantly
less when compared
to her previous salary as an Area Leader (R59 000.00 plus benefits
per month).
[105]
On the day of her evaluation it was evident that the plaintiff is
left with physical limitations of both her wrists
and left knee.
These limitations, accompanied by symptoms of pain, negatively
influenced her functional performance. She will likely
require
intermittent rest breaks when required to walk or stand for prolonged
periods.
[106]
On the day of her evaluation, the plaintiff met the demands of
sedentary and light work, but Ms Gouws again noted
that rest breaks
could negatively impact work productivity.
[107]
With regard to the plaintiff`s future earning capacity, Ms Gouws
testified that even with successful medical intervention
as testified
by Dr Marin, as degeneration in the plaintiff's wrists and left knee
progresses, pain and discomfort will likely increase.
Her
functional limitations will likely deteriorate with progression of
osteoarthritis in her wrists and left knee and her physical
work
capacity and her productivity are not expected to improve to her
pre-accident level.
[108]
Ms Gouws testified that as degeneration of the plaintiff`s wrists and
left knee joints progresses in the future,
the plaintiff may become
an unequal competitor within the position as Forensic Analyst,
requiring more accommodation in terms of
rest breaks during frequent
walking and standing, and in terms of fine motor work tasks. On days
when frequent driving/driving
for prolonged distances are again
required, this could also become problematic again. In addition, as
degeneration progresses,
dynamic postures such as kneeling and
elevated work when collecting evidence at a crime scene could become
increasingly problematic.
With exposure to frequent standing and
walking   demands, continuous strain will likely be placed
on the plaintiff's
left knee joint and with repetitive upper
extremity tasks (prolonged driving and typing) continuous strain will
likely be placed
on her wrists, which could negatively impact on the
prognosis, necessitating earlier surgical procedures.
[109]
She testified that considering the plaintiff's age (45 years),
prognosis (degenerative changes already present
in multiple joints)
and envisaged future surgical procedures (wrist arthrodesis and knee
replacement), her ability to retain her
current position until
retirement age and to excel in her career path is compromised. She
agrees with Dr Marin that even in a sedentary
to light work category,
early retirement cannot be excluded.
[110]
Ms Gouws stated that should the plaintiff again experience
psycho-social distress with an increase in pain symptoms,
this could
again negatively impact her work motivation, work speed and
relationships within a work environment.
[111]
According to Ms Gouws the accident in question impacted negatively on
the plaintiff`s psychological and emotional
well-being.
[112]
Ms Banda, during cross-examination put it to Ms Gouws that many parts
of her report relies on the report of Dr
Marin. Ms Gouws confirmed
same, in so far as the future employment of the plaintiff is
concerned. When asked whether her conclusion
will be affected should
it turn out that there is in actual fact no progressive degeneration
occurring, Ms Gouws responded in the
negative, stating that she will
still be symptomatic and presenting with pain, with the concomitant
functional challenges.
[113]
On a question by Ms Banda, Ms Gouws confirmed that she bases her view
with regard to early retirement on the opinions
of Dr Marin expressed
in his report.
Mr
Ben Moodie: Industrial Psychologist:
[114]
Mr Moodie testified that he is qualified as and has been an
industrial psychologist in private practice since
1992. Before that,
during 1987 to 1990, he was employed by the SADF Psychology
Department during which time he studied toward his
Master`s degree
and completed the Psychology Internship program. He achieved the rank
of Captain.  He was also employed by
the SAPS as Chief
Psychologist for the Witwatersrand District. He was promoted to the
rank of Lieutenant-Colonel and only resigned
to devote his attention
to his private practice. He compiled a report on behalf of the
Plaintiff, which report was received as
Exhibit “D”.
[115]
He dealt with the plaintiff’s tertiary education and further
training from which evidence it is evident
that the plaintiff
completed and passed a Diploma in Executive Secretarial Studies in
1999, completed and passed a National Diploma
in Policing from 2006
to 2008 at Unisa and completed and passed a B. Tech in Forensic
Investigation from 2013 to 2014, also at
Unisa.
[116]
He described the plaintiff as an educated and intelligent lady.
[117]
The plaintiff applied for her present position, where she was
requested to undergo psychometric tests and was
subsequently invited
to an interview. Due to her qualifications, it was not necessary to
undergo police training.
[118]
He testified that the plaintiff was earning R59 446.73 plus benefits
at the time of the accident. He testified
that he received copies of
the plaintiff's payslips confirming her employment at the Free State
Gambling, Liquor and Tourism Authority
pre-accident as well as her
earnings noted above.  Mr Moodie opined that she would have
continued her employment as an Area
Leader/Manager had it not been
for the accident.  After having reached her career ceiling at
age 45, yearly increases based
on the consumer price index would have
been applicable until retirement age of 60.
[119]
He stated that she resigned as she wasn't coping with the driving
demands associated with her job post-accident.
[120]
Mr Moodie testified that he consulted with the plaintiff at court and
confirmed her current employment at the
SAPS as a Forensic Analyst.
He is also familiar with the SAPS salary scales due to his background
work experience and confirmed
the plaintiff's current reported
earnings of R 26 000.00 per month as accurate. At the time she had
not yet received a payslip
since she still had to be registered on
the SAPS system. He is also aware that she will be receiving a
thirteenth cheque, membership
of a medical fund and a pension fund.
[121]
Mr Moodie went to great lengths to explain the complexities
associated with being a Forensic Analyst. He stated
that individuals
working in this field are continually faced with an incredible amount
of grief, sadness, pressure and stress.
[122]
He testified that the plaintiff is highly compromised concerning her
current employment having regard to her PTSD.
He opined that she will
probably not cope once fully trained, requiring her to attend
gruesome crime scenes at times, which would
no doubt exacerbate her
already existing PTSD with the result that she will be forced to
retire at age 50 years, rendering her
functionally unemployable
thereafter for all intents and purposes. The usual retirement age at
the SAPS is 60 years.
[123]
He testified that the employees of the SAPS who are most affected by
PTSD, are the Forensic Analysts. The situation
is exacerbated by the
fact that they are continuously exposed to those scenes.
[124]
With regard to the evidence and opinions of Dr Marin, Mr Moodie
testified that with the pain and discomfort of
the plaintiff`s
injuries increasing, her emotional stability will be negatively
affected. Considering her physical and emotional
condition as a
result of the accident, in conjunction with the nature of her present
employment, Mr Moodie opined that she may
even have to retire before
the age of 50 years. At the age of 50, considering that the nature of
her qualifications are only police
related, and what her physical and
mental condition would probably be like by then, it is highly
unlikely that the plaintiff will
then be able to obtain other
employment.
[125]
Mr Moodie dealt in detail at paragraph 13 of his report with the
plaintiff`s post-accident earning potential as
oppose to what her
pre-accident income potential was, dealt with at paragraph 12 of the
report.
[126]
With regard to her past loss of income, Mr Moodie stated that with
the information at hand, her post-accident
resignation from her
pre-accident employment appears to have been justified, as she was no
longer suited to travel long distances.
He therefore opined that a
total past loss of income from the date of her resignation until she
gained re-employment is justified.
[127]
In respect of her future loss of income, he testified that it will
firstly have to be calculated on the basis
of what she would have
earned pre-accident and what she is presently earning. He, however,
opined that she will probably not be
able to remain in her present
position for longer than 2 years, where after she will again be
suffering a complete loss of income.
At paragraph 15 of his report,
he stated as follows in respect of her future loss of income:
“
15.1 The writer
notes that although the claimant should be suited to a host of
employment opportunities, the physical and psychological
sequelae of
the accident have rendered the claimant vulnerable within the open
labour marked and at risk of suffering losses of
income due to
periods of unemployment suitable to her limitations. As such, a
significantly higher contingency deduction needs
to be applied in
this regard.
15.2  The claimant
is likely to suffer a further future loss of income in terms of a 10
year expected early retirement regardless
of her accommodation in a
suitable position.”
Mr Moodie testified that
the plaintiff will, therefore, be suffering a “
massive
actual loss of earnings”.
[128]
During cross-examination he was questioned about the payslips form
the plaintiff`s previous employer which he
obtained but which are not
attached to the report and whether he obtained proof of her
qualifications. Mr Moodie indicated that
he has the necessary
documentation in support thereof available at his office and that he
is more than willing to make them available.
After the completion of
his evidence the requested documents were obtained from his office
and provided to Ms Banda, to which she
responded that the contents
thereof are noted, but not admitted.
[129]
In response to further questions of Ms Banda, Mr Moodie testified
that the plaintiff is an educated woman, the
sole breadwinner and
with two children whom she had to maintain at the time. She would not
have merely resigned from her pre-accident
employment in order to sit
at home and do nothing. She was a hard worker and a real go-getter.
She had no other option, since she
could not cope with the pain she
experienced due to her injuries as a result of all the driving she
had to do. Mr Moodie testified
that he contacted her supervisor at
her previous employer and he said that pre-accident her work
performance was good and he rated
it to have been 9/10. However,
after the accident she struggled to drive due to the pain in her arms
and her leg and her work performance
rating dropped to 4/10.
[130]
Mr Moodie also testified in cross-examination that according to him
the plaintiff will be experiencing such severe
psychological problems
by the time she leaves her present employment, that she will not be
able to do any other work. He testified
that the SAPS appointed her
in her present position without being aware of her physical and
psychological limitations.
[131]
I wish to place it on record that Mr Moodie, in my view absolutely
correctly so, requested me to excuse the plaintiff
from sitting in
court when he was about to testify about the sensitive issues
pertaining to the plaintiff personally and in relation
to Mr Moodie`s
opinion on her future career as a Forensic Analyst. The respect which
he showed towards the plaintiff in having
made the request, is
commendable.
The
plaintiff:
[141]
The plaintiff testified that at the time of the accident she was
employed at the Free State Gambling, Liquor and
Tourism Authority as
Area Leader for the Gariep Region.  She was stationed in
Trompsburg where her office was located, approximately
120 kilometres
from her home in Bloemfontein.  She owned and drove a Nissan NP
200 bakkie with a manual gear system, but with
power steering, which
vehicle she is currently still driving. The plaintiff testified about
the pain she generally experiences
in her left and right wrists and
her left knee.  She explained that the long distant driving
caused her even more pain since
it affected her knee when she used
the clutch and also her wrists when she turned the steering wheel and
when she changed gears.
[142]
The plaintiff testified that at the time of the accident she owned a
house in Bloemfontein and lived there with
her two children who were
at school, with the result that she was not in a position to move to
Trompsburg. She is presently still
staying there.
[143]
The plaintiff testified that after the accident when she returned to
her employment, she was accommodated for
three months by being
allowed to work from an office in Bloemfontein in order to limit her
daily commuting.
[144]
The plaintiff testified that she was responsible to regulate the
liquor and gambling industry in Gariep area.
This,
inter
alia,
involved travelling from town to town, doing inspections,
attending cluster meetings and perform operations with other
stakeholders.
The Gariep area for which she was responsible,
had 500+ outlets.  She had to do inspections at all the outlets
once or twice
a week, depending on her manager’s instructions.
The outlet which was the furthest from Trompburg was 200 kilometres.
[145]
She further testified that her duties included the compiling and
typing of reports from the inspectors and her
own inspections.
Before the accident she experienced no problems with her typing
duties.  However, she experienced difficulty
after the accident,
since her wrists became tired and painful which necessitated her to
rest her wrists in-between, which resulted
in her taking longer to
perform her typing duties.
[146]
The plaintiff started her employment at the said employer on 3
October 2008.  She testified that she resigned
from her
pre-accident employment due to her being unable to cope with all the
driving which caused her much pain in her wrists
and her left knee.
[147]
Before she resigned, she applied to be transferred to Bloemfontein,
but the request was declined.  She was
advised that there was no
position open for her in Bloemfontein.
[148]
Her previous employer never discussed its policy regarding disability
with her and she had no personal knowledge
thereof.  If they had
discussed the option with her, she would have applied for that.
[44]
The plaintiff also testified that if it had not been for the accident
and the consequent injuries
she suffered, she would not have resigned
from her previous employment.
[149]
The plaintiff testified that at the time she was earning a gross
income of approximately R51,100.00 per month,
excluding benefits.
[150]
She testified that she is currently employed at the South African
Police Services as a Forensic Analyst, in which
position she started
on 6 March 2023.  She testified that she will be earning
approximately R26,000.00 per month, before deductions.
At the
time of the presentation of her evidence, she had, however, not yet
received a payslip.
[151]
After 31 December 2019 when she resigned from her previous employer
she initially did not seek other employment,
since she needed time to
recover from her injuries.  She only started looking for
employment again during 2022.
[152]
The plaintiff explained that a Forensic Analyst goes out to crime
scenes and take photographs, collect relevant
exhibits, lift
fingerprints, etc.  At the time of her evidence, she was still
working in a shadowing/training capacity and
as such she had not yet
attended any crime scenes.
[153]
The plaintiff testified that when she applied for her present post
and during her interview, she did not divulge
any of her physical or
mental difficulties/problems, since she was not asked about anything
in that respect. This evidence is in
accordance with what Mr Moodie
also testified.
[154]
The plaintiff testified that in this position she will also have to
drive to crime scenes. The extent of driving
will depend on where the
crime scenes are and how many scenes she will have to attend.
[155]
The plaintiff has two children and she is the sole breadwinner.
[156]
The plaintiff explained that the felt depressed after the accident
and also when she had to resign but that she
did not take any
medication.  According to her, she is not presently depressed.
However, her injuries make her feel
useless, like she cannot do
anything for herself. Before the accident she could drive wherever
she wanted, she went to the gym,
she enjoyed running and she was able
to do everything at her house for herself.  The fact that she is
no longer able to do
so, is very frustrating.
[157]
During cross-examination she testified that she has not driven a
motorcycle since the accident, as she is not
ready for it yet.
[158]
During cross-examination she also testified that she is happy to have
been appointed in her present position,
since it is the field she
specialised in.
[159]
In response to questions I posed to the plaintiff, she testified that
at the time when she resigned, she experienced
pain every day, whilst
presently she only experiences pain occasionally.  However, when
driving, it still causes pain in her
wrists and her left knee.
When she does experience pain, she takes aspirin for it.  She
further testified that sitting
and elevating her knee helps with the
pain in her knee.
[160]
Before Mr Cross closed the plaintiff’s case with regard to the
quantum,
he indicated that although there are two further
reports, one of a plastic surgeon and one of a neurologist, they will
not be called
as witnesses and that the plaintiff abandons the
contents of those reports. In my view the defendant is not to be held
liable for
the costs of those expert reports for purposes of the
present proceedings. The said costs may become applicable again in
possible
later proceedings in respect of general damages.
[161]
That concluded the case for the plaintiff in respect of the
quantum.
The
defendant`s case in respect of quantum:
[162]
The defendant did not file any expert reports in respect of the
quantum.
The defendant consequently closed its case
without presenting any evidence.
Heads
of argument:
[163]
After the trial concluded on 17 May 2023, the parties agreed to file
their heads of argument on 24 May 2023 and
2 June 2023, respectively.
Evaluation
of the expert evidence:
[164]
In
Coopers (South Africa) (Pty) Ltd v
Deutsche Gesellschaft Für Schädlingsbekämpfung Mbh
1976 (3) SA 352
(A) the following was stated at 371:
“
As
I see it, an expert's opinion represents his reasoned conclusion
based on certain facts on
data
,
which are either common cause, or established by his own evidence or
that of some other competent witness. Except possibly where
it is
not controverted, an expert's bald statement of his opinion is
not of any real assistance. Proper evaluation of the
opinion can only
be undertaken if the process of reasoning which led to the
conclusion, including the premises from which the reasoning
proceeds,
are disclosed by the expert.”
[165]
The following relevant principle was reiterated in
Road
Accident Fund v Zulu and Others
(50/11)
[2011] ZASCA 223
(30
November 2011):
“
[14]
I have already alluded to the fact that the learned judge in the
court below relied heavily on the evidence of Dr Holmes, an
expert
witness. A useful guide to the approach of expert evidence is found
in
Michael v Linksfield Park Clinic (Pty)
Ltd
where the court stated:
'.
. . what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions advanced are

founded on logical reasoning.'”
[166]
Ms Banda submitted in the defendant`s heads of argument that the
reports of Dr Marin and Ms Hearn are stale to
the extent that they
are misleading to the court and should therefore be ignored.
[167]
For the aforesaid submission Ms Banda,
inter
alia,
relied on an
unreported judgment in the matter of
GN v Road Accident
Fund
(13/305990 [2018] ZAGPJHC
691 (4 December 2018) at para [42]. Although I agree with the
principle that older reports
may
in
certain circumstances be misleading, such as in that matter where the
assessment of the plaintiff was done when he was still
a minor and at
school, whilst the report was presented in evidence at a time when he
was already employed, I do not think it should
be considered to be a
rule cast in stone. Like always, it depends on the particular
circumstances of every case.
[168]   When
considering the evidence of Dr Marin, in conjunction with his report,
it is evident that it is a medical
fact that the nature of the
injuries is degenerative joint injuries. It is based on this medical
fact that Dr Marin opines that
with passage of time, there will be
degeneration, since that is also a medical fact. Once there is
degeneration, the process will
not reverse. Dr Marin also testified
that there are signs of post-traumatic osteoarthritis, which is also
a medical diagnosis which
he made for a fact. In his expert opinion,
the degeneration will probably progress to end-stage osteoarthritis.
His aforesaid opinions,
in my view, constitute “
his
reasoned conclusion based on certain facts”,
as
required by the aforesaid case law. It is not speculation. At the
time he assessed her, the plaintiff already presented with
pain,
post-traumatic osteoarthritis and the inability to do heavy
lifting and repetitive work involving her wrists and left knee like
she did before the accident. This pain and the limitations were also
noted by Ms Gouws personally during her evaluation of the plaintiff,

which was done as recent as 4 April 2023. This confirms that the
plaintiff`s condition is not getting better, which is in accordance

with Dr Marin`s opinion. In my view there is no reason why I should
not take the report of Dr Marin, read in conjunction with his

evidence and opinions, into consideration in adjudicating this
matter.
[169]
With regard to the report of Ms Hearne, it is important to properly
consider the applicability thereof. Ms Hearne
readily conceded that
she is not in a position to state whether the plaintiff is presently
suffering from depression and anxiety.
The important and highly
relevant crux of her report, read in conjunction with her evidence,
is that the symptoms of depression,
anxiety and PTSD which the
plaintiff suffered as a direct result of the accident (factual
diagnosis which she made during her evaluation
of the plaintiff),
will
continue
to make her
less-resilient to deal with subsequent trauma and stress. These
psychological difficulties render the plaintiff a vulnerable
person
which would impact upon het occupational functioning in future, which
will be exacerbated by her physical pain and restrictions.
In my view
Ms Hearne presented “
reasoned
conclusions based on certain facts”
,
which will remain relevant for the rest of the plaintiff`s (career)
future. I am consequently also satisfied that there is no
reason why
I should not also accept the report, evidence and opinions of Ms
Hearne.
[170]
There is further no reason why the reports, evidence and opinions of
Ms Gouws and Mr Moodie should not be accepted.
[171]
The report, evidence and opinions of Mr Moodie were, in my view,
extremely valuable in this matter, considering
his applicable
knowledge, experience and background in respect of the SAPS and the
particular working conditions and duties of
a Forensic Analyst and
the subsequent emotional impact thereof on persons employed in that
position. I consequently accept his
report, evidence and opinions
which completely complied with the requirements for expert evidence
to be reliable and acceptable.
Contingencies:
[172]
It is trite that it is for the court to determine the percentage of
contingencies to be applied in a matter such
as this.
[173]
Contingencies discount the vicissitudes of life and it is a method
used to arrive at fair and reasonable compensation.
The question of
contingencies was dealt with in
[zRPz]
Southern
Insurance Association Ltd v Bailey N.O.
1984 (1) SA 98
(A) at
113G and 116G – 117A:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,

without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.
…
Where
the method of actuarial computation is adopted, 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’ (
per
HOLMES
JA in
Legal
Assurance Co Ltd v Botes
1963
(1) SA 608
(A)
at 614F). One of the elements in exercising that
discretion is the making of a discount for ‘contingencies’
or 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. See
Van
der Plaats v South African Mutual Fire and General Insurance Co Ltd
1980
(3) SA 105
(A)
at 114 - 5. The rate of the discount cannot of
course be assessed on any logical basis: the assessment must be
largely arbitrary
and must depend upon the trial Judge's impression
of the case.
…
It
is, however, erroneous to regard the fortunes of life as being always
adverse: they may be favourable. In dealing with the question
of
contingencies, WINDEYER J said in the Australian case of
Bresatz v
Przibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at 213:
‘
It
is a mistake to suppose that it necessarily involves a 'scaling
down'. What it involves depends, not on arithmetic, but on
considering
what the future may have held for the particular
individual concerned... (The) generalisation that there must be a
'scaling down'
for contingencies seems mistaken. All 'contingencies'
are not adverse: All 'vicissitudes' are not harmful. A particular
plaintiff
might have had prospects or chances of advancement and
increasingly remunerative employment. Why count the possible buffets
and
ignore the rewards of fortune? Each case depends upon its own
facts. In some it may seem that the chance of good fortune might have

balanced or even outweighed the risk of bad.’”
[174]
In the judgment of
Gillbanks v
Sigournay
1959 (2) SA 11
(N) the
following was stated at 17 E – F in respect of contingencies in
an estimation of a plaintiff`s claim for loss of
earnings:
“
In
any estimate of a person's loss of earning capacity allowance must be
made for all contingencies including the accidents of life
and
certain deductions must be made from the estimated gross income to
allow for unemployment benefits, insurance and so on. These

contingencies would include -
(i)
a possibility that plaintiff's working life may have been less than
sixty-five years;
(ii)   a
possibility of his death before he reaches the age of sixty-five
years;
(iii)   the
likelihood of his suffering an illness of long duration;
(iv)   unemployment;
(v)   inflation
and deflation;
(vi)   alterations
in the cost-of-living allowances;
(vii)   an
accident whilst participating in sport such as hockey or cricket,
or   at any other time which
would affect his earning
capacity; and
(viii)   any
other contingency that might affect his earning capacity.”
[175]
In the judgment of
Dlamini v Road Accident Fund
(59188/13) [2015] ZAGPPHC 646 (3 September 2015) at para the court
dealt with and applied some guidelines referred to by Koch in
The
Quantum Year Book:
“
[
30] Koch
refers to the following as some of the guidelines as regards
contingencies:
‘
Normal
contingencies’ as deductions of 5% for past loss and 15% for
future loss.
‘
Sliding
scale’: 1/2 % per year to retirement age, i.e. 25% for a child,
20% for a youth and 10% in the middle age and relies
on Goodall
v President Insurance
1978 (1) SA 389.
‘
Differential
contingencies’ are commonly applied, that is to say one
percentage applied to earnings but for the accident,
and a different
percentage to earnings having regard to the accident.
[31] When
a court is called upon to exercise an arbitrary discretion that is
largely based on speculated facts it must do so
with necessary
circumspection. In the absence of contrary evidence, the court can
assume that a reasonable person in the position
of the plaintiff
would have succeeded to minimize the adverse hazards of life rather
than to accept them. Both favourable and adverse
contingencies have
to be taken into account in determining an appropriate contingency
deduction. Bearing in mind that contingencies
are not always adverse,
the court should in exercising its discretion lean in favour of the
plaintiff as he would not have been
placed in the position where his
income would have to be the subject of speculation if the accident
had not occurred.”
[176]
Mr Cross submitted that in the actuarial calculations by Mr Sauer
dated 17 May 2023, the contingencies that were
used, namely 5%
deduction for past losses, both pre-morbid and post-morbid, and 5%
deduction for future losses pre-morbid (namely
0.5% per future
working year) and 25% deduction for future losses post-morbid, are
just and equitable.
[177]
Ms Banda submitted in the heads of argument filed on behalf of the
defendant that a contingency deduction of 15%
should be applied on
past losses pre-morbid and 5% on past losses post-morbid.  In
respect of future losses, a contingency
deduction of 20% pre-morbid
and 25% post-morbid should be applied. These contingencies were
suggested based on an early retirement
age of 55 years. The same
contingencies were also submitted in the supplementary heads of
argument filed on behalf of the defendant,
although it was then
suggested on the basis of an early retirement age of 50 years.
Calculation
of the loss of income:
[178]
T
he plaintiff`s actuary, Mr Sauer, made
an amended actuary calculation of the plaintiff`s loss of income as a
result of the accident,
dated 17 May 2023, based on the postulations
testified to by Mr Moodie, but which are also in accordance with the
general opinions
of the other expert witnesses.
[179]
The contingencies applied in the said calculation of Mr Sauer, are
based on the evidence of Mr Moodie, with which
I agree as being fair
and reasonable in the circumstances. This fact is also specifically
confirmed by the remark of Mr Sauer that
the higher future
post-morbid contingency deduction is “
to allow for increased
employment vulnerability, labour incapacity uncertainty possible long
periods of unemployment and early retirement”
, which is
100% in accordance with the opinion of Mr Moodie in this regard.
[180]
The plaintiff`s evidence, in my view, lay a proper basis for the
evidence and opinions of the respective experts.
There is no reason
why I should not accept her evidence in support of the claim for the
loss of past and future earnings. Furthermore,
b
ased on the
findings and postulations in the report of Mr Moodie, considered in
conjunction with his expert opinion as expressed
in court, as well as
the opinions expressed by the other expert witnesses, which I have
already indicated I accept as properly
proven by the plaintiff, I am
in agreement with the basis of the calculations and the contingencies
applied in the report of Mr
Sauer.
[181]
The said calculations reflect a pass loss of income in the amount of
R2 224 390.00 after having applied
contingencies of 5%,
both pre-morbid and past-morbid. The calculations further reflect a
future loss of income in the amount of
R7 795 834.00, after
having applied contingencies of 5% for future loss pre-morbid and 25%
for future loss post-morbid.
After the deduction of the RAF cap, the
plaintiff`s total loss of income is an amount of R6 223 572.00.
Order:
[182]
I consequently make the following order:
1. The defendant is
liable to pay 100% (One Hundred Percent) of the plaintiff's proven
damages.
2. The defendant shall
pay the plaintiff the sum of R6 223 572.00 (Six Million, Two Hundred
and Twenty –Three Thousand, Five
Hundred and Seventy-Two Rand)
in respect of loss of earnings.
3.   The
defendant shall pay the aforesaid amount into the Trust account of
the plaintiff's attorneys, VZLR Inc, the details
of which the
plaintiff`s attorneys will provide to the defendant.
4. The defendant shall
furnish the plaintiff with an Undertaking, in terms of Section
17(4)(a) of Act 56 of 1996, in respect of
future accommodation of the
Plaintiff in a hospital or 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 (and after the costs have been
incurred and upon submission of proof
thereof) arising out of the
injuries sustained in the collision which occurred on 4 February
2018.
5. The defendant is to
pay the plaintiff's taxed or agreed party and party costs of the
action, which costs shall include, but not
be limited to the
following:
5.1
Previously reserved costs.
5.2   The
qualifying, preparation- and reservation fees and costs of obtaining
reports and the evidence, where applicable,
of the following experts:
Dr
JP Marin, Orthopaedic Surgeon;
Claire
Hearne, Clinical Psychologist;
Ms
Gouws/ Alana Stroebel, Occupational Therapist;
Mr
Ben Moodie, Industrial Psychologist; and
JJC
Sauer, Actuary.
6. The above-mentioned
payment with regard to costs shall be subject to the following
conditions:
6.1   The
plaintiff shall, in the event that costs are not agreed, serve the
notice of taxation on the defendant's attorney
of record.
6.2 The plaintiff shall
allow the defendant 14 (fourteen) calendar days to make payment of
the taxed costs.
7.   The
plaintiff`s claim in respect of general damages are postponed to the
pre-trial roll of 29 January 2024.
C.
VAN ZYL, J
On
behalf of the plaintiff:
Adv
CG Cross
Instructed
by:
Du
Plooy Attorneys
BLOEMFONTEIN
admin3@duplooylaw.co.za
On
behalf of the defendant:
Ms NP
Banda
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
portiab@raf.co.za