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[2022] ZANCHC 75
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Mokala v Road Accident Fund (2396/2018) [2022] ZANCHC 75 (28 October 2022)
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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case No: 2396/2018
Heard: 11/05/2021
Date delivered:28/10/2022
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES
/ NO
In the matter between:
MICHAEL
NTELEKOA MOKALA
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
EILLERT, AJ
[1] This
is a judgment on the quantum of the Plaintiff's claim against the
Road Accident Fund. In
a pre-trail conference held by the parties in
terms of the provisions of Uniform Rule 37 on 5 June 2019 the
Defendant conceded
that it may be held 70% liable in respect of such
damages as the Plaintiff may prove, which concession the Plaintiff
accepted.
[2] The
Plaintiff's case was presented by Advocate Van Onselen. Ms Rabie, the
attorney for the Road
Accident Fund, was present in court during the
hearing, but did not actively take part in the proceedings. The
Plaintiff sought
leave to adduce the evidence of his expert witnesses
by affidavit in terms of Uniform Rule 38(2) and such leave was
granted to
the Plaintiff.
[3] The
Plaintiff's claims are only in respect of future medical costs and
loss of earnings. The Plaintiff
has no claim in respect of past
medical costs. Furthermore, according to the expert witnesses, the
injuries sustained by the Plaintiff
do not qualify as being of such a
serious nature that the Plaintiff is entitled to non-pecuniary
damages in respect thereof. I
will proceed to deal with the
Plaintiff's claims in turn.
Claim in respect of future
medical costs
[4] The
Plaintiff seeks an order in terms of section 17(4)(a) of the Road
Accident Fund Act, 56 of
1996 ("the Act"), that the
Defendant be directed to furnish an undertaking to compensate the
Plaintiff in respect of
70% of the costs of the future accommodation
of the Plaintiff in a hospital or nursing home, or treatment of, or
rendering of a
service, or supplying of goods to him, after the costs
have been incurred and on furnishing proof thereof, resulting from
the motor
vehicle collision that occurred on 28 July 2017.
[5] The
Plaintiff sustained the following injuries as a result of the motor
vehicle collision: a fracture
of his right tibia and fibula, a mild
head injury, lacerations to his head, left elbow and both hands, a
soft tissue injury of
the right knee, and various bruises, abrasions
and cuts.
[6] The
orthopaedic surgeon, Dr J F Greyling, noted in his written report
that the Plaintiff has a
2-centimeter leg length discrepancy between
his right and left lower limbs, the right lower limb being shorter
than the left. Dr
Greyling ascertained that a prominent screw was
palpable on the skin of the Plaintiff's right leg and is therefore of
the view
that the Plaintiff would benefit from the future surgical
removal of hardware from the right tibia. In addition, he noted that
the most distal screw inserted in the Plaintiff's lower limb has
broken. Dr Greyling also recommended future conservative medical
treatment, consisting of physiotherapy to his knee, ankle and foot,
and for the provision of anti-inflammatory medications, gel
and
analgesics. In the joint minute filed between Dr Greyling and the
Defendant's expert witness, Dr H L Moloto, the orthopaedic
surgeons
were in agreement that the Plaintiff is in need of future medical
treatment, and that the estimated costs of such future
medical
treatment be set at the amount of R80,000.00 (Eighty Thousand Rand).
[7] Ms
Maree, the Plaintiff’s occupational therapist, added that the
Plaintiff would also benefit
from treatment by a biokineticist,
occupational therapy, and the provision of very conservative
assistive devices and equipment.
[8] I am
satisfied in the circumstances that a directive in terms of section
17(4)(a) of the Act should
be ordered in respect of the anticipated
future medical costs of the Plaintiff.
Claim in respect of loss of
earnings or earning capacity
[9] The
evidence of Ms Maree on this question may be summarised as follows:
before the motor vehicle
collision the Plaintiff was employed as a
layer-up in a clothes factory, Jaff & Company. The work could be
classified as medium
work demands with constant standing and walking.
The Plaintiff was stabilized in his career and would have continued
performing
medium work demands until retirement age. Following the
motor vehicle collision, the Plaintiff was unable to work for four
months.
He returned to work on 1 December 2017. He was moved to the
"fusion machine', where he would be stationary as he experienced
difficulty in prolonged standing, walking and heavy load handling.
The Plaintiff was therefore sympathetically accommodated by
his
employer. On recommencing his employment, the Plaintiff was
performing frequent light demands, not handling more than 4,5kg
whilst constantly standing. Jaff & Company closed down in
September 2018 and the Plaintiff was retrenched. Regarding the
Plaintiff's
future work prospects, Ms Maree is of the view that the
he would possibly be competitive in light work demands with seated
rest
breaks, as necessary. He would not be an equal competitor in the
open labour market and would need to be accommodated by a sympathetic
employer. The Plaintiff would probably find it difficult to secure
and sustain employment and has limited career options as his
level of
education is only Grade 11. Should medical intervention be successful
in relieving pain and discomfort, the Plaintiff
would probably be
competitive in medium work demands, but he would have to undergo
intensive rehabilitation.
[10] The
Plaintiff further relied on the report of his industrial
psychologist, Dr Jacobs. In Dr Jacobs'
view, the Plaintiff is
entitled to past loss of income, which should be calculated from the
date of the motor vehicle collision
to the date of his report, being
25 July 2019. The Plaintiff did not work from September 2018 and
although he did not lose his
job as a result of his injuries, the
Plaintiff had to compete in his injured state for jobs.
[11]
Regarding the Plaintiff's loss of earning capacity, Dr Jacobs is of
the view that had it not
been for the motor vehicle collision, the
Plaintiff would have been able to work in the capacity of a general
(unskilled) worker
until the age of 65 years. His earning capacity
initially falls within the unskilled scale of the non-corporate
sector and thereafter
in the unskilled scale of the corporate sector.
Further career progressions were probably likely for the Plaintiff,
with a career
span of 45 years post the motor vehicle collision,
reaching a career plateau at 45 years of age.
[12]
Considering the
sequelae
of
the motor vehicle collision, Dr Jacobs is of the view that it is
highly unlikely that the Plaintiff would obtain and sustain
a
sedentary position requiring some administrative capacity and skills.
The Plaintiff will not be able to do medium and/or heavy
physical
work again if his symptoms persist. The Plaintiff is further likely
to face significant periods of unemployment due to
having fewer
opportunities to aspire for, and may be restricted to sympathetic
jobs on some occasions. According to Dr Jacobs,
a higher-than-normal
post-morbid contingency deduction in respect of the Plaintiff is
indicated.
[13]
Based on Dr Jacobs' recommendations, the Plaintiff obtained the
calculations of his actuary,
Mr Whittaker. Mr Whittaker proposed that
contingency deductions of 10% be made to the Plaintiff's past loss of
earnings, 20% to
his pre-accident loss of earning capacity and 40% to
his post-accident loss of earning capacity. These contingency
deductions seem
to me to be appropriate and in accordance with the
Plaintiff's expert evidence, and was accepted by the Plaintiff's
legal representatives.
[14] In
the circumstances it was calculated that the Plaintiff suffered past
loss of income in the
amount of R14,720.00 (Fourteen Thousand Seven
Hundred and Twenty Rand), and a loss of earning capacity in the
amount of R531,092.00
(Five Hundred and Thirty-One Thousand Ninety
Two Rand). The apportionment of liability is to be applied to these
figures.
[15] In
the premise the following order is made:
[1]
1.1 The Defendant
shall pay an amount of R382,068.40 (Three Hundred and Eighty Two
Thousand and Sixty Eight Rand
and Forty Cents) to the Plaintiff in
settlement of the Plaintiff's claim;
1.2 The
aforementioned amount shall be payable by direct transfer into the
trust account of Adams and Adams, details
of which are as follows:
Nedbank
Account number:
[....]
Branch number:
[....]
Pretoria
Ref:
[....]
The Plaintiff shall allow the
Defendant 180 (One Hundred and Eighty) court days to make payment of
the capital from date of this
court order, failing which the
Plaintiff will be entitled to recover interest at the applicable
rate.
[2]
The Defendant shall furnish the Plaintiff with an undertaking in
terms
of Section 17(4)(a) in respect of 70% of the costs of the
future accommodation of the Plaintiff in a hospital or nursing home
or
treatment of or rendering of a service or supplying of goods to
him, after the costs have been incurred and on furnishing proof
thereof, resulting from the accident that occurred on 28 July 2017.
[3]
The Defendant is ordered to pay the Plaintiff's taxed or agreed costs
in respect of the Plaintiff's claim on the Party and Party High Court
scale, the quantum of which is within discretion of the Taxing
Master, inclusive of but not limited to:
3.1 The fees of
Counsel on the High Court scale, inclusive of counsel's full
reasonable day fees for 10 and 11
May 2021;
3.2 The reasonable
travelling and accommodation costs of Counsel;
3.3 The reasonable
taxable costs of obtaining all expert/medico-legal, addendum, RAF4
Serious Injury Assessment
and actuarial reports from the Plaintiff's
experts which were furnished to the Defendant;
3.4 The reasonable
taxable preparation, reservation and qualification fees in respect of
all the Plaintiff's experts
in respect of which the reports were
served on the Defendant;
3.5 The costs of a
consultation between the Plaintiff and his legal representatives to
discuss the terms of this
order;
3.6 The reasonable
taxable accommodation and transportation costs (including Toll and
E-Toll charges) incurred
by or on behalf of the Plaintiff in
attending medico-legal consultations with the parties' experts,
attending the court and in
respect of consultations with the
Plaintiff's legal representatives, the quantum of which is subject to
the discretion of the Taxing
Master;
3.7 The above costs
will also be paid into the aforementioned trust account;
3.8 It is recorded
that the Plaintiff's instructing attorneys do not act on a
contingency basis.
[4]
The following provisions will apply with regards to the determination
of the aforementioned taxed or agreed costs:
4.1 The Plaintiff
shall serve the notice of taxation on the Defendant's attorney of
record;
4.2 The Plaintiff
shall allow the Defendant 180 (One Hundred and Eighty) court days to
make payment of the taxed
costs from date of settlement of taxation
hereof;
4.3 Should payment
not be effected timeously, the Plaintiff will be entitled to recover
interest at the applicable
interest rate on the taxed or agreed costs
from date of allocatur to date of final payment;
4.4 The Plaintiff
shall not issue a writ prior to the expiry of the 180-day periods.
EILLERT, A
ACTING JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
KIMBERLEY
For the Plaintiff:
Adv. C. Van Onselen
Instructed by:
Stefan
Greyling Incorporated
SG/MOK3/SM/MS
For the Defendant:
The State Attorney
Ms B Rabie
Link: 4364457; REF:
560/12648461/1035/0
(Claims Handler: Twananani).