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[2022] ZAMPMBHC 60
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Mashaba v Road Accident Fund (4762/2021) [2022] ZAMPMBHC 60 (27 July 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
CASE
NUMBER: 4762/2021
In
the matter between:-
MASHABA:
SUZAN
SIZAKELE
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
GREYLING-COETZER
AJ
INTRODUCTION
[1]
The plaintiff instituted this delictual
claim against the defendant for personal injuries sustained during a
motor vehicle collision
that took place on 16 October 2020.
[2]
According to the plaintiff the collision
occurred along the Mariti Road, Bushbuckridge, Mpumalanga Province,
when a motor vehicle
bearing registration numbers and letters [....]
and another motor vehicle bearing registration numbers and letters
[....] collided
. The
plaintiff was a front seat passenger in the latter motor vehicle.
[3]
Summons was duly served but the defendant
did not enter an appearance to defend.
[4]
The plaintiff sustained the following
injuries:-
(a)
soft tissue injury of the neck;
(b)
bruising of the occiput with concussion;
(c)
laceration of the right ear;
(d)
per-orbital bruising of the left eye;
(e)
soft tissue injury of the right shoulder;
and
(f)
transverse laceration over the right-hand
metacarpals.
[5]
The plaintiff was admitted to the Rob
Ferreira Hospital and was discharged twelve days after admission.
[6]
When the matter came before court on 25
July 2022, the merits had been settled 100% in favour of the
plaintiff in terms of a written
offer which was accepted by the
plaintiff. The claim for general damages as per the RAF4 had been
rejected, thereby ousting the
court’s jurisdiction to deal with
general damages.
[7]
The defendant also made an offer in respect
of the loss of earning capacity, which was not accepted by the
plaintiff. No offer was
made in respect of an undertaking for future
medical expenses as contemplated in Section 17(4) of the Road
Accident Fund 56 of
1996 (“the Act”).
[8]
Two heads of damages remained to be
determined by this court:-
(a)
The plaintiff’s entitlement to an
undertaking in terms of
Section 17(4)
of the
Road Accident Fund Act
56 of 1996
in respect of future medical expenses.
(b)
The plaintiff’s entitlement to past
and future loss of earnings.
[9]
The plaintiff testified in support of her
claim, together with an independent witness and various expert
witnesses. In the circumstances
of this default judgment, it is not
necessary to extensively record each witness evidence as such only a
brief summation of that
most relevant follows.
[10]
The plaintiff testified that she sustained
a head injury, various lacerations, a neck injury, injury to her
shoulders and her back.
She further testified that since the accident
she is more forgetful, suffers from headaches, experiences daily
pain, she is unable
to lift heavy items, she finds it difficult to
walk or stand for long durations and she is unable to bend forward.
She testified
that she needs assistance to go to the toilet and to
walk in general.
[11]
The plaintiff’s highest level of
education is Grade 7. For the majority of her working life, the
plaintiff was employed as
a seasonal farm worker, picking and sorting
nuts. In addition, and for six months of each year that she was not
employed as a seasonal
farm worker, the plaintiff was an informal
vendor, selling mainly vegetables from her house.
[12]
For six months of a year, the plaintiff
earned R26 390.00 at 2020 value in respect of her employment as
a seasonal farm worker,
and R27 300.00 per year at 2020 value in
respect of her income as an informal vendor. This equates to a total
income of R53 690.00
per annum or R4 474.00 per month.
[13]
The plaintiff testified that since the
collision she could not return to her employment as a seasonal farm
worker due to her injuries,
and similarly had not worked as an
informal vendor. The reason for the latter is however not truly
accident related as she explained
that no funds have been available
to purchase stock to sell, and should the plaintiff be able to gather
the required funds, she
will again resume her work as informal
vendor.
[14]
The plaintiff introduced her available bank
statements and salary advices as partial documentary proof of the
oral evidence given.
[15]
The plaintiff called Mr Phumlani Mokoena,
who testified that he assisted the plaintiff (who is his aunt) with
her street vendor
business, and should it be required, will do so in
the future.
[16]
Dr Geldenhuys is an Orthopedic Surgeon, and
testified that he examined the plaintiff twice, first during June
2021 and again during
January 2022. He testified that there were very
limited medical records available to provide a proper picture of the
plaintiff’s
pre-accident health and that no health issues were
reported to have existed prior to the accident.
[17]
He further testified that from his clinical
assessment she displayed a broad-based, slightly antalgic gait, and
her knees are in
slight flection. The plaintiff displayed a traverse
scar over the metacarpal joints of her right hand and has a 3cm scar
over her
right ear. The plaintiff suffered tenderness over the
octopod and complains of occasional vision changes. The plaintiff was
tender
over her cervical spine, occiput, thoracic spine and lumber
spine.
[18]
From the specialist investigations through
X-rays, it was noted that the plaintiff has marked disc space
narrowing at C5/6, which
could be long-standing, but was not
mentioned in any of the hospital notes, and the plaintiff indicated
that she had no issues
in this respect prior to the accident.
Further, the plaintiff’s lumber spine has marked changes at L3
and L4, and slightly
transitional changes in L5/S1 with mild
retro-listhesis at L4/5. He explained that this too could be
long-standing, but no notes
were made that this was radiologically
examined or found abnormal at the time of the accident.
[19]
He confirmed that having regard to the
January 2022 special investigation through X-rays, the position has
essentially remained
unchanged since the previous examination. The
plaintiff still presented with disc space narrowing at C5 to 6,
slight calcification
of the right shoulder, a marked narrowing of
L4/5 and a mild generative change of L3/4/5 and
S1.
[20]
Dr Geldenhuys’ two reports were
received into evidence and regarded as if it was specifically read
into the record
.
[21]
Dr Smuts, a
Neurologist’s report was similarly received into evidence.
Dr
Smuts testified that in his opinion, the plaintiff sustained a blow
to the head, which resulted in a mild to moderate concussive
head
injury with associated brain injury. He confirmed the presence of
Fibromyalgia, which he explained has a tendency to be of
genetic
onset, but considering that no history was available, it is most
likely in the present in stance that same was caused by
the accident.
This would also in the main contribute to the emotional and cognitive
problems experienced by the plaintiff.
[22]
Ms Leslie Taylor, an Occupational
Therapist, report was received into evidence. She testified that the
plaintiff is capable of light
to medium work. She explained that the
picking of the nuts fell into the medium category and the sorting
into the light category.
In her opinion, and ideally, the plaintiff
although capable of doing light to medium work, ought not to do so
and should be restricted
to sedentary to light work due to the
injuries sustained, and to avoid the need for early retirement. The
plaintiff had no training
in respect of sedentary work and from the
test result she displayed limited to no potential of being trainings
in such work.
[23]
She testified that although the plaintiff
walked with a slight limp, she walked unassisted. From the test
results as set out in
her report, the plaintiff demonstrated no
limitation in her mobility, as she was able to perform the tested
functions for 2/3 of
a working day. Difficulty was notice when
repetition came in to play.
[24]
From her psychological evaluation it was
noted that the plaintiff’s reasoning was concrete and poor
problem-solving skills
were apparent. So too her mental processing
was slow, with insight and judgment lacking to the same extent as
motivation and initiative.
[25]
The medico-legal reports by Dr Sevenster
(Obstetrician and Gynecologist), Ronel Nel (Clinical Psychologist),
Melissa du Plessis
(Industrial Psychologist) and Johan Sauer
(Actuary) were received into evidence in terms of Uniform
Rule 38(2)
as these reports contained no evidence on which I required clarity or
sought engagement. The report had also been confirmed under
oath.
[26]
From these reports the following bears
brief mention:-
(a)
In respect of Dr Sevenster, the complaint
of frequency of the plaintiff’s menstrual cycle is unrelated to
the accident.
(b)
Ronel Nel indicated that the plaintiff’s
depression and anxiety seem to find expression in phycho-somatic
systems, including
constant muscle pain and tension, headaches,
disrupted menstrual cycle and urinary urgency, and would support the
diagnosis of
Fibromyalgia suggested by Dr Smuts. The plaintiff’s
subjective experience of pain could therefore be negatively
influencing
her mood, whilst her compromised emotional functioning
could add to a decreased tolerance of pain and influence her capacity
to
successfully manage her pain.
(c)
Melissa du Plessis confirmed the future
aspirations of the plaintiff to be pre-accident and to continue
working in dual capacity
as a seasonal farm worker and self-employed
informal vendor for the remainder of her adult working life.
Post-accident the plaintiff
indicated that she now plans to continue
working in the informal sector as a street vendor on a fulltime basis
for as long as her
health permits, and that she would likely in
addition to remaining self-employed, continue to train new farm
workers at the outset
of the season, as she did since the accident.
Further:
a.
She confirmed the employment and income
information;
b.
that past loss of earnings stands to be
calculated on the available information, more particularly R 6048.80
per annum at 2022 value;
c.
in respect of future loss of earnings, she
held that when considering the plaintiff’s work and educational
history, her age
at the time, her indicated career aspirations, her
reported and varied earnings just prior to the accident under review,
it can
reasonably be concluded that the plaintiff had already reached
her earning pinnacle when the accident occurred;
d.
the plaintiff would likely have continued
working in her pre-accident capacity as a seasonal farm worker and
self-employed street
vendor, and could in this regard have expected
inflation-related annual increases only, up until the retirement age
of 65.
(d)
Mr Johan Sauer calculated the plaintiff’s
past loss of earnings pre-morbid to amount to R90 599.00 and
post-morbid to
amount to R7060.00. He further calculated the
plaintiff’s future loss of earnings pre-morbid to amount to
R840 923.00
and post-morbid to R78 125.00.
[27]
Founded on the evidence presented by the
plaintiff, this court is required to decide:-
(1)
the award to be made to the plaintiff in
respect of past loss of earnings;
(2)
the award to be made to the plaintiff in
respect of future loss of earnings;
(3)
the contingencies to be applied to the
aforementioned; and
(4)
whether the plaintiff is entitled to an
undertaking for future medical expenses, as envisaged by
Section
17(4)
of the Act.
[28]
This matter is laid before court in terms
of
Rule 31(2).
The former provides that whenever in an action the
claim, or if there is more than one claim, any of the claims is not
for a debt
or liquidated demand, and a defendant is in default of
delivering a notice of intention to defend or of a plea, the
plaintiff may
set the action down as provided in subrule (4) for the
default judgment, and the court may after hearing evidence grant
judgement
against the defendant, or make such order as it deems fit.
[29]
In the present circumstances summons was
duly served, but the defendant failed to enter an appearance to
defend. In line with the
applicable practice directive of this
Division, the matter was set down on the trial roll for receipt of
evidence.
[30]
The applicable burden of proof befalling a
plaintiff is no different in these circumstances as it would be in an
ordinary opposed
trial.
[31]
Considering the evidence led on behalf of
the plaintiff, the plaintiff has indeed proven that her injuries were
sustained due to
negligence, which negligence was conceded in terms
of the accepted offer. The plaintiff has proved that her loss arose
from such
negligence and that such loss resulted from the bodily
injuries sustained by her.
[32]
The plaintiff is thus, entitled to an award
in respect of both past and future loss of earnings in amount of
R97 659.00 and
R919 048.00 respectively.
[33]
Considering contingencies. The plaintiff
contends for a 5% contingency deduction pre- and post-morbid in
respect of past loss of
earnings, and 5% and 25% deduction in respect
of pre- and post-morbid future loss of earnings.
[34]
The 5% contingency in respect of the past
loss of earnings is justified, considering that the exact income
generated by the plaintiff
as informal vendor was not documented.
[35]
In respect of the contingencies for future
loss of earnings, in the circumstances 5% is too low. In my view the
principle of ½
a percent per year to retirement as stated in
Goodall v President Insurance
1978 (1) SA 389
(W) will be more
accurate in the present circumstances. This is said acutely aware
that this principle is not a one size fits all
solution. However,
using this as a guideline and infused with the circumstances of the
case to my mind 10% would be just.
[36]
In respect of the proposed 25% in respect
of post-morbid future loss, a higher contingency deduction is
reasonable, considering
increased employment vulnerability, labour
incapacity, uncertainty, possible periods of unemployment and
possible early retirement.
[37]
Applying 5% contingency to the past loss
and 10% and 25% respectively to the pre- and post-morbid future loss,
the total award comes
to R777 599.00.
[38]
The remaining aspect for consideration is
whether the defendant should be ordered to provide the plaintiff with
a
Section 17(4)
undertaking. Considering the proven injuries, as well
as the extent of the proposed medical intervention, there is no basis
for
me to conclude that the plaintiff would not be entitled to such
an undertaking.
[39]
In the circumstances, I make the following
order:-
1.
The defendant is ordered to pay the
plaintiff an amount of
R777 599.00
[SEVEN HUNDRED SEVENTY-SEVEN THOUSAND, FIVE HUNDRED- AND NINETY-NIGHT
RAND, ZERO CENT];
2.
Interest on the aforesaid amount of R
777 599.00 at the prescribed rate of interest if the amount
remains unpaid after 60(sixty)
days of date of this order.
3.
The defendant is ordered to provide the
plaintiff with a written undertaking as contemplated in
Section 17(4)
of the
Road Accident Fund Act within
30(thirty) days of service of
this order upon the defendant.
4.
The defendant is ordered to pay the costs
of suit.
GREYLING-COETZER
AJ
DATE
OF HEARING:
25
AND 26 JULY 2022
DATE
OF JUDGMENT:
27 JULY 2022
FOR
THE PLAINTIFF:
Adv Herman
Percival
Instructed By Philip
Meyer Attorneys
E-mail:
noma@pmeyerprok.co.za
FOR
DEFENDANT:
NO APPEARENCE ENTERED (Default Judgment)
Mr C Mkansi –
Court Monitor