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[2022] ZAKZPHC 38
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Sithole v Road Accident Fund (7869/2018P) [2022] ZAKZPHC 38 (4 August 2022)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 7869/2018P
In
the matter between:
NDUMISO
WINLOVE SITHOLE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
PLOOS
VAN AMSTEL J
[1]
The plaintiff in this matter is
Nondumiso Winlove Sithole, a 32-year-old female. The defendant is the
Road Accident Fund.
[2]
The plaintiff was injured on 14 December
2014 when a motor vehicle in which she was a passenger
overturned.
She filed a claim with the RAF, after a
doctor had certified that her injuries were such that she had
suffered a 68% 'Whole Person
Impairment'. The RAF did not contest
this. The plaintiff instituted an action for compensation in July
2018, after which the merits
were settled and the RAF accepted
liability to compensate her for her loss. The matter came before me
today for the quantification
of the claim. The plaintiff was
represented
by
counsel, but the RAF was unrepresented, in spite of having been
notified of the hearing, and the service
of a notice of set-down on it.
[3]
Two heads of damages were claimed. The
first was for general damages
and
the second for loss of earnings. I was furnished with affidavits from
a number of medical specialists, dealing with her injuries
and their
sequelae. I was also furnished with a report and affidavit by an
actuary, dealing with loss of income. I deal firstly
with the claim
for general damages.
[4]
The plaintiff was 23 years old at the
time of the incident. She was described in the particulars of claim
as a dressmaker. She suffered
serious injuries, in the form of a
traumatic brain injury, scarring of the face and soft tissue injuries
to the right knee and
leg. The report by Dr Bhanjan,
a neurologist,
states that when he examined the
plaintiff in August 2019 she presented with features of a
post-traumatic mood and behavioural disorder
with chronic
neurocognitive impairment, post traumatic headaches, post traumatic
epilepsy and chronic pain syndrome. These features
were in keeping
with a moderate -
severe
traumatic brain injury. An EEG performed by him demonstrated features
of a multifocal seizure disorder.
[5]
An occupational therapist, Ms Jane Van
den Merwe, states in her report that the accident has impacted on the
plaintiff's physical
abilities and caused ongoing pain in her lower
back, right knee, right arm, headaches and changes to her cognition,
behaviour and
personality,
which
prevented her from returning to work and also affected her home,
personal and family life. She often felt moody and irritable,
got
angry easily and relied on support from her extended family. She was
also often forgetful and disorganized.
[6]
A clinical psychologist, Dr Bosch,
states in her report that the clinical and psychometric picture is
consistent with the diagnosis
of a mood disorder (depression); a
somatic symptom disorder with predominant pain; and subtle, mild
neurocognitive disorder; emotional
personality and behavioural
changes; mild self and body image disturbances; reduced
social/leisure/sexual functioning; and fatigability.
In addition, she
suffered mental anguish and the awareness of poor function and of
injury.
[7]
The plaintiff was employed at the time
of the incident, although her contract was due to expire in two
weeks' time. The contract
was not renewed, apparently because of the
accident.
In
March
2016
she
obtained
a
code
10
driver's
licence.
She completed
a one- year Higher Computer Literacy
course at Avuxeni Computer Academy in Newcastle in 2017 (She says it
was in 2012. The certificate
says 27 June 2017.) From February to
October 2021, she was employed as a hairdresser, on a commission
basis. She says she resigned
in October due to persistent pain and
the low income. She remained unemployed after that, and intended to
attend hospitality studies
with a view to pursue a career in cooking
and catering. She says she has not done so due to a lack of funds.
[8]
An Industrial Psychologist, Mr De Kock,
expressed the view in his report that, but for the accident, the
plaintiff was likely to
have continued competing for unskilled to low
semi-skilled positions in the open labour market with prospects of
progression to
higher levels through further education, training, job
changes and experience, working until normal retirement age of 65
years.
At the time of the accident, she was working for Bayport
Financial Services, selling funeral policies on a commission basis.
She
told Mr De Kock that if the accident had not happened, she would
have resigned in 2015 in order to complete the matric and then
study
for a teaching diploma. Mr De Kock says that, given her academic
record, is uncertain if she would have been successful at
the diploma
level.
[9]
In Mr. De Keck's report two different
scenarios are dealt with -the first on the basis that she
would
have
completed
grade
12;
and
the
second
on
the
basis
that
she
would have enrolled for tertiary studies
and ended up with an N6 level diploma at a TVET College. I regard the
second scenario as
unlikely.
[10]
The first scenario states that the
plaintiff would likely have obtained grade 12 in 2015; would then
have re-entered the open labour
market and found temporary/contract
work in the formal sector for three years; during this period would
have attended additional
vocational certificate courses, such as
higher computer literacy, driving license, administrative,
secretarial, receptionist, etcetera,
to enhance her skill set and
employability. Thereafter, at the age of 28 years, she probably would
have procured permanent work
at the lower quartile of Paterson A2;
and through further training, job changes and experience she would
likely have progressed
to a career ceiling at the lower quartile of
Paterson B2 at age 45 years. She probably would have remained on this
level and received
only inflation related annual increases until
normal retirement at age 65 years.
[11]
Mr De Kock sketches the following
position, since the accident had happened. The plaintiff was unable
to return to her former employment.
She has remained unemployed to
date. She obtained a code 10 driver's license in March 2016. She
completed a one year higher
computer literacy course. The
certificate indicates that she completed the course on 27 June 2017.
She however claimed that she
did the course in 2012. She still wants
to pursue a career in teaching and, if not, wants to find a clerical
position. Mr. Kock
says it is likely that the plaintiff will pass
grade 12; and will find temporary/contract work in the formal sector
for three years.
Thereafter, at the age of 33 years she will probably
find permanent work and is likely to progress to a career ceiling at
age 45,
and thereafter receive only inflation related increases until
early retirement at age 60 years. However, given
the
high
unemployment
rate, the
current
level
of
education,
epileptic
condition, physical limitations,
uncertainty regarding the success of future medical and psychological
interventions and rehabilitation,
impairment of neuropsychological
functioning, chronic pain, and persisting psychopathology, her
employment prospects are significantly
narrowed and she will be
vulnerable to performance, high absenteeism, disciplinary issues and
possible dismissals or redundancy.
Thus, a much higher than normal
contingency for unemployment
should
be applied in the injured state.
[12]
The
plaintiffs
loss
of
income
was
actuarially
calculated
on
the
facts
and
assumptions
in
Mr. De Kock's report. The past loss of earnings was calculated in a
sum of R564 621, being the difference between what the plaintiff
would have earned and what she in fact earned, with a contingency
deduction of 5%. The future loss of income (scenario one) was
calculated in an amount of R2 857 049, with a contingency deduction
of 20% in respect of the 'but for' earnings, and 50% in respect
of
the future earnings.
[13]
That
brings
me
back
to
the
general
damages.
It
is
relevant
in
this
context
to
determine whether or not the plaintiff was rendered unemployable. I
do not think the probabilities, as they appear from the medical
reports, establish that she is unemployable. Nevertheless, her
working life will be more frustrating and uncertain than it would
have been, and losing a job will be traumatic and frustrating.
[14]
I have had regard to the reported cases
to which counsel referred me. They are guidelines only, but helpful
in the sense that they
illustrate the range of awards in comparable
cases, and sometimes the correct application of principles and
contingencies. The
cases are listed in counsel's written heads of
argument, and I do not intend to list them all. The awards range
between R500 000
and R1,4m, as the facts are not truly comparable.
[15]
I must determine an award for general
damages that I regard as fair to both parties. Unfortunately, the
defendant has not found
it necessary to make submissions in this
regard. Having regard to the plaintiff's physical injuries and the
consequences thereof,
including the chronic pain, psychological
trauma, chronic neurocognitive impairment and her significant loss of
the enjoyment of
the amenities of life, including a satisfying and
fulfilling work life, I think an award of R900 000 will be
appropriate.
[16]
The award will therefore be a total
amount of R4 321 670 (R564 621 + R2 857049 + R900
000). Counsel provided
me with a draft
order
in
the usual form,
which
order
I
make, with the amount in para one to be the sum of R4 321 670. The
order is attached to. this judgment, and initialled by me.
PLOOS
VAN AMSTEL J
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
Case
No: 7869/2018
On
the 2
nd
day of August 2022 before the Honourable Justice
Ploos Van Amstel
In
the matter between:
SITHOLE:
NONDUMISO WINLOVE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
DRAFT
ORDER
Having
perused the pleadings and the documents filed and having heard
counsel it is ordered that:-
1.
The Defendant is ordered to make payment
to the Plaintiff in an amount of
R4
321 670 (four million three hundred and twenty-one thousand and six
hundred and seventy rand
("the
capital amount") in full and final settlement of the Plaintiff's
claim against the Defendant for damages suffered
as a result of the
injuries sustained in a motor vehicle collision that occurred on 14
December 2014.
2.
The Defendant is to furnish the
Plaintiff with an Undertaking in terms of Section 17(4) of the Road
Accident Fund Act, Act No 56
of 1996, covering 100% of the
Plaintiff's reasonable and necessary future medical expenses which
will include, but not be limited
to, accommodation
in a hospital or nursing home, or
treatment or rendering of a service, or supplying of goods or related
expenses as
inter alia
set
out in the Plaintiffs medico-legal reports as set out in 5.1
hereunder, in respect of injuries sustained by the Plaintiff in
the
motor vehicle accident referred to herein
supra.
3.
Payment of the capital amount is to be
made into the following account, being the trust account of the
Plaintiffs appointed attorneys
of record, EVN Legal Practitioners
Incorporated:-
4.1
Account Name
EVN
Legal Practitioners Inc.
4.2
Bank
S
tandard
Bank
4.3
Branch
Gateway
4.4
Account
number [....]
4.5
Branch
code [....]
4.
Payment of the aforesaid amount shall be
paid on or before 31 January 2023 failing which interest a
tempora
morae
is payable on the capital
amount at a rate of 7.5% per annum from 14 days from date of this
order to date of payment.
5.
The Defendant is to pay the Plaintiffs
taxed or agreed upon party-and-party costs on a High Court Scale,
which costs will
inter a/ia
include
the following:
5.1
All costs incurred in attending and
travelling to the following medico-legal examinations as well as all
costs incurred in obtaining
all medico-legal reports and actuarial
calculation, including qualifying fees if applicable, in respect of
the following experts
appointed by the Plaintiff:
5.1.1
Dr Bhanjan (Neurologist);
5.1.2
Dr De Kock (Industrial Psychologist);
5.1.3
BA
Bosch (Clinical Psychologist);
5.1.4
Jane Van Der Merwe (Occupational
Therapist);
5.1.5
Mr.
Whittaker
(Actuary);
5.1.6
Dr. Arvin M. Lalbahadur
(Plastic/Reconstructive Surgeon).
5.2
Costs of Counsel;
5.3
The costs of Attorney which includes:-
5.3.1
reasonable travelling costs for actual
attendance to Pre-trial conferences, irrespective of time elapsed
between Pre-trial conferences;
5.3.2
costs in preparing for Pre-trial
Conferences, judicial case management and trial, including the costs
consequent to compiling all
Pre-trial agendas, Pre-trial minutes,
heads of argument/submissions and summaries in terms of directive
38A;
5.3.3
All costs previously reserved, the
reasonable cost of consulting with the Plaintiff.
5.4
Costs of Correspondent Attorney;
5.5
The Plaintiff shall serve a notice of
taxation on the Defendant and shall afford the Defendant 14
(Fourteen) court days to make
payment of the taxed or agreed costs:
BY
ORDER OF COURT
REGISTRAR
Case
Information
Date
of Hearing :
1 August
2022
Date
of Judgment :
4 August 2022
Appearances
Counsel
for the Plaintiff
Ms
B De Beer
Instructed
by
Plaintiffs
Attorneys Edelilng
Van Niekerk Inc.
c/o
Venns Attorneys
281
Pietermaritz Street
PIETERMARITZBURG,
3201
Tel:
033 355 3100
Fax:
033 394 1947
Email:
deline@evninc.co.za
Ref:
D WALLACE/SIT36/MAT1216
Ref:
P Dewes
Counsel
for the Defendant :
No Appearance