About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2023
>>
[2023] ZAGPPHC 736
|
|
Mtshweni v Road Accident Fund (34393/2020) [2023] ZAGPPHC 736 (30 August 2023)
THE
REPBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
HIGH COURT DIVISION, PRETORIA
Case
no:
34393/2020
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE
30 AUGUST 2023
SIGNATURE
In
the matter between:
JULY
BENNETH MTSHWENI
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
MAKHOBA,
J
[1]
The plaintiff instituted an action against the defendant for loss of
earnings suffered
as a result of injuries sustained in a motor
vehicle collision which took place on 5 January 2017.
[2]
The merits were not settled
however counsel for the plaintiff handed in the plaintiff’s
affidavit and addressed the court on the merits. The court found that
the insured driver was liable 100% in favour of the plaintiff.
[3]
The defendant was not represented on the date of trial and the
attempt to settle matter
did not yield any results, on behalf of the
counsel for the plaintiff asked for the matter to proceed on default
judgment
via
video link. Counsel addressed the court and
referred the court to her heads of argument. I was asked to decide
the matter on the
basis of the papers, and no oral evidence was led.
[4]
The orthopedic surgeon J.P Marin states that the plaintiff was
treated and discharged
the same day. X Ray results indicates that the
plaintiff did not sustain and fractures or dislocation.
[5]
The diagnosis in paragraph 7.6
[1]
is described as “soft tissue injury of the cervical spine
resulting in residual pain and symptoms.
[6]
Finally in paragraph 11.2.7
[2]
of his report the orthopedic surgeon says “It is my opinion
that the patient will be able to work to the normal retirement
age of
65 (sixty-five years)”
[7]
Monique van Wyk the occupational therapist in her report
[3]
says that the plaintiff suffered past loss in his part-time job as a
hairdresser. He experienced headaches.
[8]
In paragraph 6.3 she says
the plaintiff enjoys his current occupation and would like
to
continue with such in future.
[9]
H. Kotze the industrial psychologist says in her report
[4]
she says the plaintiff did not suffer any loss of earnings regarding
his formal employment.
[10]
In paragraph 11.2 (ii)
[5]
she
says the plaintiff still needs to attend to treatment which would
lead to periods of absence from work.
[11]
It is trite that the onus rests on the plaintiff to prove his case on
the balance of probabilities
[6]
[12]
The duty is on the plaintiff to produce evidence that, because of the
injury, he has suffered
loss income.
[13]
The issue of loss earnings is intrinsically linked with the merits of
the matter. To determine
whether there was any loss of earning the
court had first to determine whether the plaintiff had sustained any
injury and, if so,
the extent of such injury. It is not sufficient to
place actuarial calculations before the court and ask the court to
determine
the loss of earnings without any reference to the merits of
the matter.
[14]
I am unable to find on the documents before me that the plaintiff is
entitled to any amount in
respect of loss of earnings for the
following reasons:
14.1.
There is no medical proof that the plaintiff, cannot continue with
his hair dressing business. On the contrary
the orthopedic surgeon
says he will be able to retire at 65 years.
14.2.
There is no medical proof of the plaintiff’s alleged headaches.
14.3.
There is no proof of hair-dressing business for example invoice,
receipts of bank statements.
14.4.
No proof that plaintiff was paying tax on his business and the name
of his business.
[15]
In my view, the plaintiff has failed in his duty to satisfy the court
that he las lost any earnings
or stands to lose any earning as a
consequence of the motor vehicle accident in question.
[16]
I therefore make the following order:
16.1
The plaintiff’s claim for loss of earnings is dismissed.
16.2 I
make no order as to costs.
MAKHOBA
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
AND RESERVED JUDGMENT: 18 AUGUST 2023
JUDGMENT
HANDED DOWN ON: 30 AUGUST
2023
Appearances
:
For
the Applicant: Adv R Ferguson (instructed by) Wemeyers Attorneys
For
the Respondent: N/A
[1]
CaseLines
007-8.
[2]
CaseLines
007-11.
[3]
CaseLines
007-19 par 6.1.
[4]
CaseLines
007-54 par 11.1
[5]
CaseLines
007-55.
[6]
Pillay v Krishna and another
1946 SA 946.