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[2022] ZAFSHC 59
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November v Road Accident Fund (1483/2017) [2022] ZAFSHC 59 (24 March 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN THE HIGH
COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
1483/2017
In the matter
between:
LWAYEPHI JAMES
NOVEMBER
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
HEARD
ON:
1
FEBRUARY 2022
JUDGEMENT
BY:
LITHEKO, AJ
DELIVERED
ON:
The judgment was handed down electronically by
circulation to the partiesâ legal representatives by email and
release to SAFLII
on 24 March 2022. The date and time for hand-down
is deemed to be 24 March 2022 at 12:00
[1]
The plaintiff, an adult male born on the 6
th
January 1974, instituted an action for damages arising from bodily
injuries that he sustained in a motor collision which occurred
on the
1
st
August 2016 at
8h00 on the Dealesville/Bloemfontein road, approximately 20
kilometres from Dealesville.
[2]
The claim is for payment of R3,119,657.00 for the following heads of
damages:
2.1. Past
medical and hospital expenses
R 5,000.00
2.2. Estimated
future medical treatment
R 45,000.00
2.3. Past loss of income
R 257,229.00
2.4. Estimated future loss of
income
R2,312,428.00
2.5. General
Damages
R 500,000.00
[3]
On the 29
th
October 2021, De Kock AJ ordered the defendant to pay to plaintiff
the sum of R 500,000.00 in respect of general damages. The
plaintiffâs
claim for loss of earnings and past medical expenses
was postponed for hearing on the 1
st
,
2
nd
and 4
th
February 2022.
[4]
On the 1
st
February 2022, before the commencement of the hearing, Mrs Bornman,
representing the defendant, confirmed that she is aware of the
above
trial dates but informed me that she does not have instructions and
that, consequently, there would be no appearance for the
defendant.
.
[5]
Mr. Sanders, who appeared for the plaintiff, applied for an order
that the trial proceed.
I granted this application and made an order
that the trial proceed on the basis that the defendant was in
default. He informed the
Court that the plaintiff abandons his claim
for past medical expenses.
[6]
What was left for determination by this Court is therefore the
plaintiffâs claim for
past loss of income and future loss of
earning capacity.
[7]
Mr. Sanders submitted that based on the fact that there were no
factual disputes raised
in the pleadings, no
viva voce
evidence would be led. He relied on the affidavits of the experts and
the contents of the various medico-legal reports discovered
by the
parties. I admitted the expertsâ affidavits and their reports into
evidence as exhibits, in terms of Uniform Rule 38 (2),
as I was of
the view that no prejudice would be suffered by the defendant, who
was in default of appearance in any event, and it
would save time and
costs to do so in the circumstances.
[8]
The plaintiff, who was employed by Tokologo Local Municipality as a
waste truck driver
and earning an annual income of R140,702.00 at the
time of the motor vehicle accident, sustained the following bodily
injuries as
a result thereof:
8.1. right
femur fracture,
8.2. fractured
bilateral metatarsals, and
8.3. scalp laceration.
[9]
He was unable to work for a period of 5 (five) months after the
accident and he was
paid only a basic salary during this period. He
could not perform overtime work, which he would have performed but
for the accident,
and consequently suffered loss of income in this
regard.
[10]
According to the report of Dr DK Mutyaba, a Specialist Neurosurgeon,
the plaintiff suffered a combined
whole person impairment of 10% and
his longevity was not affected by the accident.
[11]
The affidavit of Dr Louis Francois Oelofse, an Orthopaedic Surgeon
was admitted into evidence as an exhibit
and in his report he
suggests that the plaintiff receive treatment in the form of
arthroscopy and debridement of the right knee joint
with a possible
medial meniscus repair. He strongly recommends that the plaintiff
should continue using nonsteroidal anti-inflammatory
drugs and
analgesics, physiotherapy, long-term rehabilitation and biokinetics.
His opinion is that the plaintiff would have been
able to work until
the age of 65 (sixty-five) years had it not been for the accident and
the injuries sustained and that if he is
accommodated in a light
duty/sedentary position, provision must be made for 5 (five) yearsâ
earlier retirement, otherwise he must
not be allowed to do physical
labour.
[12]
Ben Moodie, an Industrial Psychologist, concludes in his report that
the plaintiff has become an unfair
competitor in the open market as
far as future employment is concerned and he will find it difficult
to compete with other healthy
people for work. He states that the
plaintiffâs injuries have a direct impact on his expertise as a
driver, affecting his ability
to drive long distances, to kneel or
squat and to carry weight.
[13]
Johan Sauer, an Actuary, regards the plaintiff as unemployable
post-morbid. His calculation of the plaintiffâs
past loss of
earnings, with a contingency deduction of 5 per cent is R257,229.00
and for the future loss of earnings the calculation
is R2,434,134.00
with zero per cent contingency deduction. There Actuary has proffered
no motivation for not applying any contingency
deduction in respect
of future loss of earnings or earning capacity.
[14]
It is settled law that a trial Court has a wide discretion to award
what it in the particular circumstances
considers to be a fair and
adequate compensation to the injured party for his bodily injuries
and their
sequelae
.
[1]
[15]
Against the above background, I find that there is proof on a
preponderance of probabilities that the
plaintiff has suffered loss
of income and earning capacity due to the
sequelae
of the
injuries that he sustained in the accident. The plaintiffâs claim
for future loss of earnings is the amount of R2,312,428.00,
whereas
the actuarial calculations amount to R2,434,134.00.
[16]
Mr Sanders submitted that it would be appropriate in the
circumstances of this case to apply a 20 per
cent contingency
deduction to the amount determined by the Actuary for future loss of
earnings. I do not think that it would be inappropriate
to apply this
percentage deduction for contingencies in respect of this head of
damages.
[17]
In the result, I have come to the conclusion that the award along the
lines as calculated by the Actuary,
subject to the deductions applied
in respect of future loss of earning capacity, should be made.
[18]
During the hearing, Mr Sanders submitted a draft order containing the
relevant provisions generally found
in orders of the nature sought in
this matter and I propose to make an order based on that draft with
some amendments.
[19]
I make the following order:
1.
The defendant is ordered to pay to the plaintiff the sum of
R2,204,536.00 made
up as follows:
R 257,229.00 in
respect of past loss of earnings, and
R 1,947,307.00 in
respect of future loss of earnings.
2.
The amount in 1 shall be paid by direct transfer into the trust
account of VZLR
INC., the details whereof are the following:
ACCOUNT
NAME
: VZLR INC.
BRANCH
NAME
: ABSA BUSINESS BANK
HILLCREST
BRANCH
CODE
: 632005
TYPE OF
ACCOUNT
: TRUST ACCOUNT
ACCOUNT
NUMBER
: [â¦.]
3.
The amount referred to in 1 shall not bear interest unless the
defendant fails
to effect payment thereof within 30 (thirty) days of
the date of this order, in which event interest shall accrue on the
outstanding
amount at the rate of 7% per annum (or the applicable
mora
rate) calculated from the 30
th
calendar day
from the date of this order up to and including the date of payment
thereof.
4.
The defendant must make payment of the plaintiffâs taxed or agreed
party and
party costs, which shall include the reasonable qualifying,
preparation and reservation fees and costs of the following experts:
Dr
L F Oelofse
-
Orthopedic Surgeon
Dr
D K Mutyaba -
Neurosurgeon
J
Mbhele
-
Clinical Psychologist
Dr
Van Heerden -
Plastic and Reconstructive
Surgeon
Dr
A S Nhlapo
-
Neuropsycologist
Ms
L Van Zyl
-
Occupational Therapist
Mr
B Moodie
-
Industrial Psychologist
Mr
J Sauer
-
Actuary
M. S. LITHEKO, AJ
For
the Applicants:
Adv. A. Sanders
Instructed
by:
VZLR Inc, Pretoria
c/o Du Plooy
Attorneys, Bloemfontein
For
the Respondents:
No Appearance
/roosthuizen
[1]
A.A.Mutual
Insurance Association Ltd. v Maqula 1978(1) SA 805 (A) at 809B.