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[2021] ZAGPPHC 412
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Nkosi v Road Accident Fund (49021/19) [2021] ZAGPPHC 412 (18 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No:
49021/19
REPORTABLE:YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED
DATE:
18
June 2021
In
the matter between:
BONGANI
ALBERT
NKOSI
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
TSATSI
AJ
INTRODUCTION
[1]This
application has been heard in a virtual hearing via Microsoft
Teams.
[2]
The Plaintiff a 41 year old male, who was employed as a General
Worker at a Construction Company, instituted a claim against
the
Defendant as a result of a motor vehicle accident which occurred on
13 July 2018 wherein the Plaintiff was a passenger. The
Plaintiff was
38 years when he got involved in the motor vehicle accident.
[3]
Merits have been settled 100% in favour of the Plaintiff on 10
October 2019.
ISSUES
[4]The
issue in dispute are past and future loss of earnings, future medical
expenses and general damages.
BACKGROUND
[5]With
regard to past and future loss of earnings the Plaintiff appointed
various experts, viz.; the orthopedic surgeon, neurosurgeon,
maxilla-
facial and oral surgeon, occupational therapist, industrial
psychologist and an actuary.
[6]
According to the orthopedic surgeon Dr P T Kumbarai at the time of
the accident the Plaintiff lost consciousness and only regained
it in
hospital. The Plaintiff was taken to Charlotte Maxenge Hospital and
he sustained the following injuries: rib fractures, loss
of teeth,
fracture of the mandible, laceration chin, undisplaced fracture of
the right distal radius, head injury and poor hearing
left ear.
[7]
The neurosurgeon Dr Mazwai, noted the findings of the orthopedic
surgeon as stated above. In summary Dr Mazwai stated that the
Plaintiff has significant mental disturbances and should be
compensated for general damages and future medical treatment.
[8]According
to the maxilla facial and oral surgeon, Dr Lebaka the Plaintiff needs
dental care to maintain good oral hygiene.
The occupational
therapist Dr Masango noted that the Plaintiff will benefit from
occupational therapy intervention for pain management
and principles
vocational rehabilitation for reskilling, work hardening and
conditioning.
[9]The
opinion of the Industrial Psychologist is that the Plaintiff can be
deemed an unequal competitor in the open market due to
the injury
sustained in the accident and that it is unlikely that he will attain
his pre- morbid level of success.
[10]
The actuary, JC Sauer considered the report of the Industrial
Psychologist, quantified the claim for loss of earnings and earning
capacity to the amount of R 2678 720.00 (Two million Six Hundred and
Seventy Eight Thousand Seven Hundred and Twenty Rand ) only.
THE
LAW
General
Damages
[11]
Kaduku
vs RAF
(83408/2014)
[2017] ZAGPPHC 432 (22 March 2017)
(2017
- R 650
000.
2020 value R734 000). Kubushi J, in determining the claim for general
damages, referred to the injuries suffered by the plaintiff,
which
included:
a
left tibia and fibula fracture and head injury with a laceration of
the scalp. He was treated with an open reduction and internal
fixation with tibial nails was done for the left tibia fracture. He
was treated medically for the head injury and the scalp laceration
was sutured. The evidence indicated that he sustained a moderately
severe diffuse brain Injury.
[12]
In
Abrahams
v RAF
2014
(J2-1) QOD 7 (ECP) Eksteen, J awarded R500 000.00 to a 41
year-old spray painter. The present day value of the award
dated 29 May 2012 is R727 000.00. Although the judgment is
found in segment J, it is apparent that the plaintiff did
not really
suffer multiple injuries. The court found that the head injury
complained of was really minimal and no cognisance
was taken thereof
in considering the amount to be awarded for general damages.
[13]
In
Ndaba
v RAF
2011
(6E3) QOD 14 (ECB) R300 000.00 was awarded to a female informal
hawker who was 42 years old at the time of the injury.
This is
equal to a value of R456 900.00 in 2019. This plaintiff
sustained multiple orthopaedic injuries including a pelvic
fracture,
and fractures to the right femur and tibia as well as a left knee
injury. Open reductions and fixation were performed
on the hip
joint, femur and tibia. Injuries to her shoulder and hip might
require hip and shoulder replacement over time.
[14]
In
the matter of
Road
Accident Fund v Faria
2014
(6) SA 19
(SCA)
the Supreme Court of Appeal, restated the principle from the Duma
matter
supra
and
held that under the new legislative regime the assessment of whether
a claimant’s injury was serious was an administrative
and not
judicial, decision. Unless the Fund was satisfied that the injuries
were serious, the claimant has no claim for general
damages.
[15]
In
M
s
iza
v Road Accident Fund
[1]
,
a
62 year old woman was awarded R700 000.00 in 2014 after
sustaining the following injuries in a motor vehicle accident: left
femur fracture, later on her leg had to be amputated above the knee;
fracture of the right humerus and laceration of the scalp.
[16]
In
casu the Plaintiff did not sustain injuries leading to the amputation
of his leg.
[17]
The Road Accident Fund offered an amount of R500 000.00 (five
hundred thousand Rand) for generaI damages, I am of the
view that an
amount of R600 000.00 (six hundred thousand) for general damages
will be reasonable.
Loss
of earning capacity
[18]
The
issue of diminished earning capacity is trite.
The
mere fact of physical disability does not necessarily reduce the
estate or patrimony of the person injured. Put differently,
it does
not follow from proof of a physical injury which impaired the ability
to earn an income that there was in fact a diminution
in earning
capacity
[2]
.
[19]
The principles for an assessment of loss of earnings or earning
capacity were set forth by the then Appellate Division in
Southern
Insurance Association Ltd v Bailey
1984
(1) SA 98 (A)
[3]
:
"
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss….”
[20]
In
2019 a 28 year old woman who suffered blunt abdominal trauma;
forehead lacerations; and pelvic fracture was awarded an
amount
of R486 948.00 for past loss of earnings and R6667 532.00 for
future loss of earnings
[4]
.
In this case the Plaintiff was a passenger and lost a 28 week foetus
as a result of the collision. At the time of the accident
the
Plaintiff was 23 years old.
[21]
If one compares the preceding case with the case in
casu
,in
the preceding case the Plaintiff was much younger and even lost a 28
week foetus.
[22]I
have considered all the experts reports submitted on behalf of the
Plaintiff and his pre and post- morbid situation as detailed
in the
experts reports.
[23]
The Road Accident Fund offered an amount of R714. 677.65 (seven
hundred thousand fourteen and six hundred seventy seven Rand
and
sixty five cents) for loss of earning. I am of the considered view
that an amount of R400 000.00 (four Hundred thousand
Rand)
for past loss of earnings and R600 000.00 (six hundred thousand
Rand) for future loss of earnings is reasonable in the
circumstances.
[24]
I
accordingly mark the draft order "X" and it is made an
order of Court.
E.K
TSATSI
ACTING
JUDGE OF THE HIGH COURT
For
the Plaintiff: Adv. N. Sobekwa
Instructed
by: Marlin Marimuthu Attorneys
For
the Defendant: No appearance
Date
of Hearing:
9 June 2021
Date
of Judgment:
18 June 2021
This
judgment was handed down electronically by circulation to the
parties’ representatives via email and by uploading on
case
lines.
1)
30118/2011)
[2014] ZAGPPHC 27 (19 February 2014).
2)
Union &
National Insurance Co Ltd v Coetzee 1970(1) SA 295 (A) at 300A
3)
At
113F to 114E
4)
M v Road
Accident Fund (14250/2016) [2020] ZAGPPHC 96 (17 April 2020.