Nsele v Road Accident Fund (70447/2019) [2021] ZAGPPHC 455 (13 July 2021)

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[2021] ZAGPPHC 455
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Nsele v Road Accident Fund (70447/2019) [2021] ZAGPPHC 455 (13 July 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPORTABLE:
NO
OF INTEREST TO OTHER
JUDGES:
NO
REVISED.
YES
13 JULY 2021
DATE
CASE
NO: 70447/2019
In the
matter
between:
MUSA
SYDNEY NSELE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
KHWINANA
AJ
Introduction
[1]
The Plaintiff is MUSA SYDNEY NSELE, an adult male, who instituted
action against the
Defendant pursuant to a motor vehicle accident
that occurred 10 October 2018.
[2]
The Plaintiff is, a major male citizen of RSA, with identity number:
870315 6355 08
4. The Plaintiff is currently 34 years old.
[3]
The issue of merits was settled 70 % in favour of the Plaintiff’s
agreed or proven
damages.
[4]
The
issue to be decided upon is quantum on loss of earnings and general
damages.
Background
[5]
The Plaintiff a pedestrian, who was crossing the road along South
Street and West Avenue,
Centurion when he collided with motor vehicle
with registration number DH 36 JL GP, driven by Zanele Ndyalivana the
insured driver.
[6]
Dr M De Graad (Orthopedic Surgeon) stated that the Plaintiff will
require the removal
of the femoral nail from the fracture site on his
right leg. Further he will require conservative pain management.
[7]
Dr L Berkowitz (Plastic and Reconstructive Surgeon) stated that all
the scars of the
Plaintiff will require surgical revision. He will
further require radiotherapy on some of the scars following surgery
as well as
aqueous cream for the scars.
[8]
Dr Kolloori (Neurosurgeon) stated that rigorous speech therapy is
required by the Plaintiff.
The Plaintiff also requires clinical and
neuropsychological assessment.
[9]
Mrs C Esterhuizen, the Speech Therapist is of the opinion that the
Plaintiff needs to
attend speech and language therapy for at least 40
sessions over a minimum period of 1 year.
[10]
Mrs Megan Spavins, the Occupational Therapist, states the Plaintiff
will require physiotherapy, speech
and language therapy,
psycho-social intervention, and occupational therapy.
[11]
The
Defendant made an offer to issue an Undertaking in terms of Section
17(4) if the Road Accident Fund Act, to pay for the Plaintiff’s
future medical expenses, limited to 70 %.
General
damages
[12]
Dr M De Graad, the Orthopeadic Surgeon, completed a RAF 4 Form,
stating that the Plaintiff’s injury
is serious long-term impairment
or loss of body function. The injury is also permanent serious
disfigurement. From the report it
is evident that the Plaintiff
suffered the following injuries: He suffered a loss of consciousness,
and woke up in hospital; Subtrochantric
fracture of the right femur
with irregular deep laceration on the posterior aspect of the thigh;
Lacerations of the optical area;
Bruising of the left elbow and Head
injury. The wound on the leg caused by the fracture became infected.
The femur fracture was treated
with an open reduction and internal
fixation.  The Plaintiff was in hospital from 10 October 2018 to
19 November 2018. He has
difficulty speaking and with word finding.
The Plaintiff cannot articulate his thoughts; He has extensive scars
on his right leg;
1 cm muscle wasting of quadriceps muscles; The
fracture has united. Displacement of lesser trochanter bone fragment.
Dr L Berkowitz
– Plastic and Reconstructive Surgeon – declared
that the Plaintiff’s injuries were permanent serious disfigurement,
and issued
a RAF4.
[13]
The Plaintiff’s WPI is 20 %, and the Plaintiff suffered the
following injuries: Severe lacerations
of the right posterior thigh;
Scalp lacerations;  A 100mm x 4mm Non-hair bearing scar on the
right mid-line of posterior scalp;
A 10mm x 4mm scar on the
right midline of posterior scalp;  A Hypertrophic post-surgical
scar of 30mm x 8mm on lateral aspect
of the right thigh; A 30mm x 6mm
hypertrophic post-surgical scar along the mid-line of the lateral
aspect of the right thigh;
A Hypertrophic, inverted v-shape
scar, 160mm x 12mm on posterior aspect of right thigh;  L-shape
scar lying proximal to scar
described above in , hypertrophic scar
measuring 80mm x 12mm;  A Hypertrophic scar measuring 15mm x 8mm
lying lateral to the
scar described in Hypertrophic scar of 20mm x
6mm lying distal to scar described in  above. Dr A Kollorooi,
the Neurosurgeon,
stated that the Plaintiff:  Suffered from a
severe long term mental or severe long term behavioural disturbance
disorder, and
therefore issued a RAF4 form.
Injuries
and sequelae
[14]
The Plaintiff cannot walk unaided due to leg pain and imbalance; he
has difficulty in speaking properly
or understanding; he has
withdrawn socially; he has a mild ataxic gait; he suffered a mild to
moderate head injury; he suffers from
severe headaches; he has
retrograde amnesia; he suffers from speech dysphasia, he stutters as
he cannot get the words out. Vanessa
Gaydon, the Educational
Therapist stated:  The Plaintiff experiences headaches; He
struggles to walk, walks with a limping gait.
Has to walk while using
crutch; He is in constant pain in his upper leg. His leg often
swells; He has severe slurred, unclear speech;
He has difficulties
with fine motor skills; He is socially withdrawn, and unhappy about
his loss of independence; He has difficulties
with reading and
writing; He is forgetful; His speech is repetitive; He is slow
physically and mentally.
[15]
The length of unconsciousness, confusion, and the headache he
experienced when he woke up after accident
indicates a moderate to
severe Traumatic Brain Injury that was diffuse in nature; He has a
complex communication disorder with significant
apraxia (loss of
capacity to plan and execute motor actions);  Difficulty in word
finding and ordering his thoughts; Exhibits
severe difficulty with
programming and execution of general gross and fine motor movement,
indicative of apraxia as a result of possible
damage to the
cerebellum and parietal lobe; Overt memory and attention
difficulties;  Disorders of thought;  Extensive
difficulties with bilateral integration is indicative of
disconnection between the 2 hemispheres of the brain;  Severe
neurocognitive
deficits and impairments in all domains of
neurocognitive functioning consistent with diffuse neurological
damage as a result of
a brain injury.
[16]
The domains with which the Plaintiff struggles is attention, memory,
learning, reasoning, sensory motor
functioning, information
processing, visuo-praxis, verbal fluency and language, higher
executive functioning; These areas will create
significant barriers
to independent functioning and employment in future;  His
physical, neurocognitive and emotional functioning
have deteriorated
significantly; He is unlikely to gain even simple, unskilled work due
to the physical difficulties and pain, along
with the neurocognitive
deficits;  He will not be able to earn an income or care for
himself independently.  The Plaintiff
was examined by a Speech
Therapist and Audiologist, Mrs C Esterhuizen, who stated that the
Plaintiff suffers from:  Receptive
language is limited to short
sentences. He can only follow instructions up to two part simple
instructions; He has attention and
memory problems which intervenes
with receptive language; Some word finding difficulties.
[17]
He would replace a word with a close alternative word, ex motorcycle
with bicycle;  Could not name
the weekdays, he continued
counting, as this was the first task presented to him;  He has
difficulties with descriptive narrative
as well as significant
semantic and syntactic deficits;  Shows poor sustained focus and
attention;  Could repeat phrases
and sentences of up to 6 words,
thereafter it is difficult for him;  He could not do basic math;
Significant difficulty in writing.
His reading is very slow and
inaccurate; Mild to moderate apraxia of speech; Symptoms of
dysarthria; Mild to moderate receptive and
expressive aphasia.
Legal
principles
[18]
Advocate Nell has referred me to a plethora of cases and
inter
alia
in the matter of
Potgieter
v Road Accident Fund
[1]
a 30 year old semi-skilled male suffered a severe head injury. He
suffered a Traumatic Brain Injury with considerable frontal
lobe
dysfunction, as well as extensive laceration of the scalp and a
fracture of the parietal region of the skull. Soft tissue injuries
to
the neck, wrist, right foot and lumbar spine was suffered, as well as
a ruptured bladder which was conservatively treated by inserting
a
catheter. The Plaintiff suffered from decreased cognitive abilities,
defective memory, impaired concentration and significant change
in
personality. Advocate Nell opines that the head injuries suffered by
the Plaintiff in
Potgieter
is very similar to the present matter. He further submits that the
Plaintiff suffered from further horrific orthopaedic injuries,
such
as the femur fracture and has the significant speech problems.
[19]
The Court awarded Potgieter an amount of R 650 000.00, which is R 1
029 006.50 in 2021 value. In the
matter of
M
A v Road Accident Fund
[2]
the Plaintiff suffered a head injury and scaring whereas
in
casu
the Plaintiff’s injuries include scarring over his right forehead,
over the upper left eye lid, a 4cm scar over lower eye lid and
cheek,
Multiple scars over left cheek and the multiple scars over left cheek
not unsightly.
[20]
The neurocognitive deficits and reported word-finding difficulties,
along with his observed dysarthric
speech, and comprehension and
expression difficulties would be in keeping with the expected outcome
following a severe brain injury,
with a left-hemispheric focus. The
Plaintiff's sister confirms the speech and language deficit, saying
he makes little sense and
does not respond to conversation
appropriately. The Plaintiff reported minimal symptoms of depression
on psychometric assessment
and his mood was clinically observed to be
euthymic, and his affect varied. However, the Plaintiff lacks insight
into his deficit,
which would account for this. The Plaintiff
expressed that he only feels unhappy when he thinks about the
accident. The Plaintiff
displays neurovegetative and behavioural
changes such as social withdrawal, passivity, lack of interest, poor
appetite, sleep disturbances
and irritability (as noted by his
sister).
[21]
These changes, as well as the lack of insight can be attributed to
the significant injury to the brain.
From a neuropsychological
perspective, the Plaintiff is not a fair competitor in the open
labour market. His fluctuations in attention,
comprehension
difficulties, slowed psychomotor and processing speeds, as well as
stimulus resistance difficulties renders him unemployable
as the
Plaintiff would have difficulties understanding and following
instructions and would be too slow to be effective. In addition,
he
lacks drive and ambition now, which is due to the injury to the
brain. Given the suspected organic aetiology of these symptoms
it
suggests that therapeutic intervention would play a supportive role
only. The Plaintiff has suffered a head injury with expected
(moderate to) severe neurocognitive, neurobehavioral and altered mood
sequelae.
[22]
Counsel referred me to the matter of
Dlamini
v Road Accident Fund
[3]
(was a 37 year old male involved in a motor vehicle collision. The
Plaintiff sustained a head injury. The plaintiff has made good
recovery but was still symptomatic with neuropsychological sequela
consistent with a head injury of that nature. The psychometric
testing confirmed that his neuro-cognitive function has been
seriously impaired by the accident. Counsel has alluded to the
American
Medical Association guides to the evaluation of permanent
impairment a whole person's impairment of 31 percent is calculated.
No
meaningful improvement can reasonably be expected of the
plaintiff. The Plaintiff sustained a severe head injury and a
fracture of
the maxilla and teeth. He is left with neuropsychological
sequelae because of his head injury. The experts agreed that although
the
plaintiff has not developed post-traumatic seizures, he now has
an increased risk of developing seizures. He is symptomatic with
post-traumatic headaches, and there is a 20 percent chance that he
will remain symptomatically lifelong. The plaintiff’s tests
results
showed that his neuro-cognitive functioning has been seriously
impaired by the accident. He is experiencing much inner stress
and
finds it difficult to control his impulses especially aggression and
irritation. He believes in abilities that he no longer has
because he
despises being so reliant on others. He has difficulty in expressing
himself and finding the right words.
[23]
He is slow in completing tasks and is unable to grasp the different
parts of his experiences. Test results
show signs of brain injury and
defective functioning. He has lost interpersonal relationship with
his wife because of the changes
in his personality and uncontrollable
behavioural outbursts. His personality has undergone changes and
becomes agitated, frustrated
and angry very quickly. Those emotions
are typical of a frontal lobe injury. He will not be able to continue
working in his current
environment in the future. His prognosis for
the injury to the lumbar and cervical spine is poor. The Court
awarded
Dlamini
R850
000.00 in 2012, which is R 1 320 109.87 in 2021. The severe
neuro-cognitive deficits suffered by
Dlamini
is similar
to Plaintiff in present matter.
[24]
Counsel alluded to the matter of
Mtshali
v Road Accident Fund
[4]
where a 22 year old male suffered the following injuries in an
accident. A head injury with frontal and parietal cranial impacts,
accompanied by a moderate to severe head injury. Soft tissue injury
of the shoulder and wide spread abrasions and soft tissue injuries.
His Glasgow Coma Scale was 15/15. Loss of memories for 2 to 8 hours.
The Plaintiff had cognitive deficits typical of a brain injury
which
were mild to moderate in nature. The mild to moderate deficits were
consistent with a mild to moderate brain injury. An award
of R850
000.00 was made in 2017, which is R1 005 168.81 in 2021 value.
[25]
Counsel submits that It is trite law that the assessment of general
damages cannot with ease, be done
with any measure of mathematical
accuracy, and the court has a wide discretion. See, for example,
AA
Mutual Insurance Limited v Maqula
and
Southern
Insurance Association Limited v Bailey N.O.
It is equally
trite that no two cases are always similar since it is difficult to
find a comparable matter that is on all fours in
respect of the
facts. Each case must be adjudicated on its own particular merits.
See also
Van Dyk v Road Accident Fund
for the
proposition that an amount for general damages is to compensate a
claimant for the pain, suffering, discomfort and loss of
amenities of
life to which she/he has been subjected as a result of the particular
injuries sustained; and that such an amount should
be updated to
present day values where appropriate.
[26]
The principle as set out in
RAF
v Marunga
[5]
should also be taken into consideration, which states that there is a
modern approach which takes into consideration the rising standards
of living and the fact that past awards in our court were
conservative as compared to other jurisdictions. Counsel submits that
an
award of R 1 100 000.00 is fair and reasonable in the
circumstances
Past
and future loss of income
[27]
Pre-accident the Plaintiff was working as a cleaner, which work can
be classified as that of light physical
work. He was unable to return
to work and has remained unemployed to date. Residual work capacity:
When comparing his physical abilities
to that of his pre-accident
position it is evident that he meets the minimal physical demands of
his pre-accident occupation as a
cleaner. The Plaintiff has the
physical ability to meet work demands for sedentary, light and
mid-range medium physical demand work.
However, he presents with
significant communication and cognitive deficits. He is unable to
learn new tasks or follow a set of instructions.
Clinically, he
presents as follows:  He is not fully oriented to the date; He
presents with reduced cognitive endurance. The
quality of his
attention deteriorates as his cognitive endurance deteriorates; He
demonstrates difficulty with immediate and delayed
visual memory; He
demonstrated difficulty learning and recalling new information; He
demonstrates significant difficulty following
verbal English
instructions.
[28]
He demonstrates moderate word finding difficulties; His response to
verbal demand and task execution
is remarkably slow; He has
significant deficits with motor planning; He demonstrates significant
deficits in abstract thinking, decision
making, problem solving and
judgment; He demonstrates poor cognitive endurance. The Plaintiff
presents with significant communication
and cognitive deficits. The
Occupational Therapist is of the opinion that he is not suited to
formal or informal open labour market
employment at present. He is
not capable of learning new tasks, even those of a simple nature. He
is therefore not even capable of
unskilled employment. It is unlikely
his limitations will improve to the extent that he will be capable of
earning a living in the
future. It is likely that he will remain
financially dependent for the remainder of his lifespan.
Pre-accident
income potential
[29]
The Plaintiff’s highest level of education is a Grade 11. He has
working experience as a store man,
general worker building on
construction sites and a cleaner. At the time of the accident he was
employed as a cleaner. He would have
mainly been employable in jobs
categorized as unskilled to semi-skilled which tend to be more
physically demanding. The Industrial
Psychologist is of the opinion
that the Plaintiff would have continued in these fields, receiving
inflationary increases until retirement
at the age of 65 years.
Pre-accident the Plaintiff was most likely earning within the
Informal sector earnings for unskilled
labourers, which were as
follows (according to Robert J. Koch, Quantum Yearbook, 2018): R8 700
– R25 500 – R73 000 per annum.
He was earning between the median
and the upper quartile of the sector. It is likely his earnings would
have increased until he reached
his career ceiling at the age of 40 –
45 years, earning at the upper quartile of the unskilled sector. He
would have then received
inflationary increases until retirement at
the age of 65 years.
Post-accident
income potential
:
[30]
The Plaintiff has remained unemployed as he was unable to continue
his work as a cleaner as a result
of the injuries he sustained.
Counsel submits that in taking into account the above expert opinions
and assessments performed the
expert is of the opinion that the
Plaintiff’s employability has been adversely affected. He has been
diagnosed with a mild to moderate
head injury, he has an established
expressive dysphasia and has sustained significant neurocognitive
impairments. He has been compromised
to the extent that he is
unlikely to be able to gain even simple, unskilled work as a result
of his physical difficulties and pain,
along with the neurocognitive
deficits. He will be unable to earn an income or care for himself
independently. Further to the above,
his quality of life has been
significantly compromised. It is unlikely that his limitations will
improve to the extent that he will
be capable of earning a living in
the future. He is therefore rendered unemployable as a direct result
of the injuries sustained.
[31]
Taking cognizance of all the above, the accident in question has had
a negative effect on the Plaintiff’s
employability, work and
subsequent earning capacity. Given the significance of his current
communication and cognitive deficits,
he is not suited to formal or
informal open labour market employment. He is not capable of learning
new tasks, of even a simple nature.
Consequently, he is not capable
of unskilled employment. It is unlikely that his limitations will
improve to the extent that he will
be capable of earning a living in
the future. He is therefore rendered unemployable as a direct result
of the injuries sustained.
This is indicative of the fact that the
there is a loss of income.
Calculations
[32]
Working on the report of the Industrial Psychologist, the Plaintiff’s
actuaries calculated the Plaintiff’s
past and future loss of
income. The normal 5 % deduction is proposed for the past loss.
With regards to the future loss, the
Plaintiff is deemed
unemployable, therefore no contingency ought to be deducted on the
injured scenario. A normal 15 % deduction
on the uninjured scenario
is proposed.
[33]
The following calculations are proposed:
UNINJURED
INJURED TOTAL PAST EARNINGS R114 859 011-22
LESS
CONTINGENCY 5%/-% R5 7434 Sub-total R109 116 R109 116
FUTURE
EARNINGS R1 442 734 LESS CONTINGENCY 15%/-% R216
410.10
Sub-total R1 226 323.90 R1 226 323.90 TOTAL R1 335 439.90.
Counsel
for the plaintiff submits that a fair and reasonable offer for past
and future loss of earnings would be R1 335 439.90.
Conclusion
[34]
The plaintiff requests that all the relevant circumstances and expert
reports, be taken into account.
The Plaintiff seeks 70% of the
Plaintiff’s agreed or proven damages for the following:-
That
the Defendant be ordered to issue an undertaking in terms of Section
17(4) of the Act, to pay for the Plaintiff future medical
expenses,
limited to 70 % that the Defendant pay the amount of R1 335
439.90. in respect of past and future loss of income.
That the
Defendant pay the amount of R1 100  000.00 in respect of
general damages. Less Apportionment, the total amount
payable by the
Defendant is R 1 704 807.93.  Costs to be awarded on a High
Court Scale.
[35]
I am inclined to agree with the experts in relation with their
informed recommendations and counsel for
the plaintiff. The plaintiff
will no longer be employable therefore it is proper that he be fully
compensated and the amount as alluded
to
supra
is in order. The plethora of cases particularly the matter of
Dlamini
has almost similar injuries and sequelae. In the matter of
Van
Dyk v Road Accident Fund
[6]
for
the proposition that an amount for general damages is to compensate a
claimant for the pain, suffering, discomfort and loss
of amenities of
life to which she/he has been subjected as a result of the particular
injuries sustained; and that such an amount
should be updated to
present day values where appropriate.
In
result I made the following order:
Draft
order marked “X” is made an order of Court.
E.N.B.
KHWINANA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
CASE NO:  70447/2019
HEARD ON:  01 June
2021
FOR THE PLAINTIFF:
ADV. A. NELL
INSTRUCTED BY:  Moss
& Associates Inc
DATE OF JUDGMENT:
13 July 2021
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER:  2019/70447
HELD
AT PRETORIA ON 13 JULY 2021
BEFORE
THE HONOURABLE JUDGE KHWINANA (AJ)
VIRTUAL
HEARING
In
the matter between: -
MUSA SYDNEY
NSELE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
Claim Number:
326/12800102/17/1
Link Number:
4736193
DRAFT
ORDER
AFTER
hearing counsel for the Plaintiff, and reading the papers filed on
record, the following order is made:
1.
The
issue of merits was previously settled at 70 % in favour of the
Plaintiff;
2.
The
Defendant shall make payment to the Plaintiff the capital sum of
R
1 704
807.93;
in
full and final settlement for loss of income and general damages
which amount has been apportioned accordingly, within 180 days
of
this order, failing which interest will start accruing on the
aforesaid sum at the rate of 7 % per annum, from
180
days
of the date of this order, until date of final payment which amount
is made up as follows:
2.1.
Loss
of income:
1 335
439.90
2.2.
General
Damages: 1 100 000.00
3.
The
said payment shall be made into the trust account of the Plaintiff’s
attorneys of record, with the following account details:
Name
of account holder:        Moss and
Associates
Bank
Name:
First National Bank
Branch
Name:
RMB Private Bank
Account
number:
624 605 65 751
Branch
Code:
250 655
Type
of Account:
TRUST ACCOUNT
Ref:

N1357
4.
The
Defendant shall furnish the Plaintiff with an undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act, No 56 of 1996
, for
70% of the costs of the Plaintiff’s future accommodation in a
hospital or nursing home or treatment or rendering of a service
or
supplying of goods to the Plaintiff or related expenses arising out
of the injuries sustained by the Plaintiff in the motor vehicle
collision on 10 October 2018, after such costs have been incurred and
upon proof thereof;
5.
The
Defendant shall make payment of the Plaintiff’s agreed or taxed
party and party      High Court costs.
6.
The
Defendant shall be liable for any costs attendant upon obtaining
capital payment.
7.
7.1.
The
Plaintiff shall, in the event of the costs not being agreed, serve
the notice of taxation of the Defendant's attorneys of record;
7.2.
The
Plaintiff shall allow the Defendant 180 days to make payment of the
taxed costs; and
7.3.
The
Plaintiff shall not issue a writ against the Defendant prior to the
expiry of the 180 day period allowed for payment to be made.
8.
The
Plaintiff did enter into a contingency fee agreement.
By
the Court
REGISTRAR
COUNSEL
FOR PLAINTIFF:
Adv. A. Nell – 072 610 9425
EMIAL
FOR COUNSEL:
annekenell5@gmail.com
PLAINTIFF’S
ATTORNEY
Eugene L. Annadale
– 011 787 6111
EMAIL
FOR ATTORNEY:
eugene@mossinc.co.za
COUNSEL
FOR DEFENDANT:        Phindile
Mthimunye - _______________
EMIAL
FOR THE DEFENDANT:
phindilem2@raf.co.za
[1]
(Quantum
of Damages, Vol VI, A4- 195)
[2]
(17158/2017)
[2020] (28 February 2020)
[3]
10/39907)
[2012] ZAGPJHC 13 (21 February 2012)
[4]
(23918/2013)
[2017] ZAGPPHC 868 (22 March 2017)
[5]
2003
(5) SA 164
(SCA) at 170
[6]
2003
(SE8) QOD 1 (AF), at paragraphs [22] and [23]