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[2021] ZAGPJHC 560
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Molefe v Road Accident Fund (13151/2018) [2021] ZAGPJHC 560 (9 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH
GAUTENG DIVISION, JOHANNESBURG
CASE
NUMBER: 13151/2018
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
DATE:
09/09/2021
LEBOGANG
MOLEFE
APPLICANT
AND
ROAD
ACCIDENT
FUND
RESPONDENT
JUDGMENT
INTRODUCTION
[1]
This is a claim for the recovery of damages by the plaintiff as a
result
of an injury he sustained in a motor vehicle collision. The
collision occurred on the 18
th
August 2017 at
approximately 21h30 at Diepkloof. The matter is undefended as the
court struck out the defendant's defence on the
6
th
May
2021. On the date of the hearing Ms Ameersingh, an employee of the
RAF appeared on behalf of the RAF and requested a postponement
which
I refused. I stood down the matter to allow settlement negotiation
between Ms Ameersingh and Ms Molope-Madondo, counsel for
the
plaintiff. The issue of liability was settled, with the defendant
conceding 80% liability for the plaintiff's proven damages.
The
issues remaining for determination are general damages, future
medical expenses and loss of earning capacity.
EVIDENCE
The
plaintiff testified and called three expert witnesses.
[2]
Plaintiff testified as follows: he was hit by a motor vehicle while
walking
with his friends on the 5th October 2015. He sustained
injuries to his left hip and was taken to Helen Joseph Hospital by an
ambulance,
was operated upon and a steel plate fixture was inserted.
He was hospitalized for a period of two weeks and went back to school
after 6 weeks walking with the aid of crutches. He continued to use
crutches until 2016 because he did not want people to see that
he was
limping. He did not go to school when the weather was cold because of
the pain.
[3]
He was a scholar in grade 9 when the collision occurred. He went back
to school the very same year, he passed and was promoted to grade 10
in 2016. He failed grade 10 and had to repeat the grade in
2017. He
failed it again because he chose subjects that were difficult for
him. He could not go back to school in 2018 because
he was said to be
above the age allowed for high school.
[4]
He has since gone back to school, he was at the time of the hearing
attending
ABET classes (night school) doing grade 11. He was coping
with the pain because it had reduced in intensity. And was no longer
taking medication. He was still limping but he could stand for long
periods and he could even jog around a football field four times.
He
still felt pain especially when the weather was cold and he takes
Painblock tablets for the pain. The pain would normally last
for 3
hours but after it subsided he was able to resume his normal routine.
His career choice was to become a traffic officer.
[5]
Dr John Tladi, an orthopaedic surgeon testified as follows: The
plaintiff
suffered a fractured femur during the collision.
He
had
a childhood femur injury which had healed significantly. The
plaintiff was injured on the very same femur during the collision.
The nail that was used previously had been removed and replaced with
a stronger nail. On the X-rays it showed that the femur had
not yet
united and this had nothing to do with the previous injury. The
non-union resulted in plaintiff experiencing pain while
jumping or
ascending and descending stairs. Plaintiff could jog because jogging
was the same as walking. The plaintiff was likely
to develop post
traumatic osteoarthritis and would require a hip replacement surgery
in the future but could not say when it was
likely to happen.
[6]
Thembisile Mahlangu, an occupational therapist, testified as follows:
She assessed
the plaintiff and amongst others the results showed that
the plaintiffs left leg was weak. There was a clicking sound on his
left
hip joint when he was performing some tasks during the
assessment. He experienced moderate pain when carrying weight of 9kg
and
would change in posture. Plaintiff was able to jog but running
was not recommended as it required more exertion. The plaintiff was
suited for sedentary to light work ie. admin work, call center jobs
or work as an assistant in a technical field because of his
injury.
It would be difficult for him to be a traffic officer as he did not
meet the stress requirements of the job.
[7]
Katlego Mokgotla, an industrial psychologist testified
as follows:
She performed a selfassessment test on the plaintiff which gave
an indication of how the plaintiff saw himself.
The plaintiff
reported mild level of pain, anxiety and hopelessness. It was hard
for her to determine which career he would have
followed as he was in
grade 9 when the collision occurred. At the time the report was
compiled the plaintiff had grade 10, was
not attending school and was
unemployed. She confirmed that the plaintiff would be more suited to
more sedentary to light work
but that he would struggle to get
sedentary work since he did not have grade 12. When she was informed
that plaintiff had since
gone back to school and was in grade 11, she
stated that he would then be able to upskill himself and should be
able to work within
the semi-skilled category. The plaintiff's
injuries did not affect his retirement age and since he has gone back
to school, his
job choices have not been reduced. She stated that
although the plaintiff has cognitive difficulties, they were not
accident related.
Injuries
and treatment received.
[8]
According to Dr Tladi the plaintiff sustained a
left femur fracture
(intertrochanteric). He was taken to St Hellen Joseph Hospital where
he was operated upon and an intramedullary
nail was fixed and he
walked with the assistance of crutches. As a result of the collision
the plaintiff has a 1.5cm leg length
discrepancy.
Future
Medical Expenses
[9]
Dr Tladi reported that the plaintiff would need to consult various
medical practitioners
intermittently, including general practitioner,
orthopedic surgeon and physiotherapist. He would also require
prescription analgesics
and non-steroidal anti-inflammatory drugs
periodically to manage the pain. The fracture has developed a
non-union and would require
surgical intervention in the future. I
intend to make an order that the defendant issue a certificate in
terms of s17(4) of the
Road Accident Fund to cover the claim for
future medical expenses.
Loss
of earning capacity
[10]
The plaintiff is claiming an amount ofR2 609 753.55 for loss of
earning capacity. It was the
opinion of the industrial psychologist
that the plaintiff would have completed his grade 12 and entered the
labour market with
a diploma. However because of the accident he will
enter the labour market 3 years later than his peers without grade 12
and would
enter the labour market as an unskilled labourer.
Evaluation
(loss of earning capacity)
[11]
When the collision occurred in 2015, the plaintiff was an 18 years
old scholar in grade 9. He
went back to school after six weeks and he
was promoted to Grade 10 at the end of that year. He repeated grade
10 twice and according
to his own evidence he failed because he chose
subjects that were difficult for him. He was expelled from school in
2018 because
of his age after he failed grade 10. He registered for
ABET classes but could not proceed that year as he was arrested and
imprisoned
for looting. The above evidence clearly indicates that the
plaintiffs late entry into the labour market does not have anything
to do with the collision and therefore the defendant cannot be held
responsible for that.
[12]
The submission that the plaintiff has suffered loss of earning
capacity is based on the opinion
that the plaintiff will no longer
attain his grade 12. In her report, the industrial psychologist
stated that the plaintiffs pre-accident
potential was that he would
have been able to complete his grade 12 and to obtain a diploma. At
the time the industrial psychologist
prepared the initial report, the
plaintiff had left school with only grade 10 and was unemployed.
[13]
In this regard the actuarial report prepared by R Koch is such that
plaintiffs pre-accident
earnings with a matric and diploma were
calculated to be R 7 456 439 and post-accident earnings without a
matric was calculated
at R 1 967 281. The calculations were based on
the findings of the industrial psychologist (which are quoted in the
report), where
she stated as follows:
''noting
that he is likely to obtain lower levels of education as compared to
what was anticipated pre-accident and that he may
have to rely on his
physical ability to generate income, the writer is of the opinion
that in his post-accident injured stated
would experience
difficulties competing against most physically abled and academically
qualified candidates in the labour market
..." the industrial
psychologists then concluded "as per expert opinion, Mr Molefe
may no longer attain his pre-accident
potential, and thus will suffer
loss of future earnings potential".
[14]
The plaintiffs circumstances has since changed, he has gone back to
night school and was
in grade 11 at the time of the hearing. The
industrial psychologist confirmed that since he has gone back to
school then he should
be able to achieve his pre-accident potential.
The conclusion that he would enter the labour market without grade 12
was based
on the fact that he was not attending school and was
unemployed when the report was initially compiled. During her
testimony I
enquired whether it would make a difference if plaintiff
had since gone back to school. She confirmed that it would in that
plaintiff
should be able to proceed on the postulated pre- accident
scenario.
[15]
The educational psychologist stated in the addendum to her report
that should plaintiff
be motivated enough "he should return to
school and try at TVET college where he will be able to nurture and
enhance his technical
skills". She opined that plaintiff would
be able to reach his pre accident potential and get admitted to
a diploma. This
addendum was prepared in 2018 after plaintiff was in
night school. The occupational therapist was also of the opinion that
plaintiff
can go back to school and even go on to complete his
diploma.
[16]
Having gone back to school, plaintiff should, according to the
industrial psychologist,
achieve the pre-accident scenario as
postulated. As a result, the calculation based on plaintiff entering
the job market without
a matric is no longer applicable. This would
mean that the pre-accident scenario as postulated would be the same
as the post-accident
scenario.
[17]
There is no evidence that the injuries sustained by the plaintiff or
the sequelae thereof
has impaired the plaintiff's ability to earn
income in the future or that his earning capacity has in any manner
been reduced.
In my view the plaintiff has not proved loss of earning
capacity.
GENERAL
DAMAGES
[18]
The plaintiff submitted RAF 4 duly completed by Dr Tladi, which
stated that the plaintiff
qualifies for the Narrative Test due
non-union. The Plaintiff submitted that the serious injury assessment
has not been rejected
by the RAF.
[19]
In considering the amount to be awarded for general damages, the
courts are expected to
take care to see that their awards are fair to
both sides; giving just compensation to the plaintiff 'without
pouring out largesse
from the horn of plenty at the defendant's
expense'. (see Pitt v Economic Insurance Co Ltd 1957 (3) 284 (D) at
287) Past awards
can be used as a guideline in the determination of
what the court considers to be a fair and just compensation.
[20]
Plaintiff submitted that an amount of R500 000 (Five Hundred Thousand
Rand) should be awarded
for his injuries and the sequelae thereof.
The plaintiff referred to the case of Morris v Road Accident Fund
(99303/15) [2018]
ZAGPPHC 486 (12 July 2018) as a comparable case
because Morris suffered 'non-union of the right femur distal
two-thirds one third
junction with displacement of the distal
fragments laterally'. He was left with shortening of 2cm on the right
leg.
[21]
I have considered the abovementioned case which the plaintiff relied
on as comparable.
The injuries sustained in that case are described
as follows: "(a) Right distal femur fracture (non-union); (b)
Non-union
of the right femur distal two-thirds one-third junction
with displacement of the distal fragment laterally. This injury has
left
the Plaintiff with a shortening by 2 cm of the right leg; (c)
Abrasions to the forhead, nose and chin; (d) Fractured and damaged
teeth; (e) The unsightly scars; and disfigurements. According to Dr
Pienaar's report, the Plaintiff will retain considerable scarring
which will not lend itself to any further surgical reconstructive
surgery, led to a permanent serious disfigurement; (f) Severe
symptom
of depression with avert agitated mood and, according to Dr Pienaar's
report, also severe past-traumatic anxiety which
impedes her mobility
significantly which results in absenteeism at work." Despite
receiving treatment, the plaintiff in that
case had the following
complaints: pain in the right hip; pain in the right knee; pain in
the right ankle; pain over the fractured
area in the right leg; pain
in the left wrist, pain on the right lower jaw and temporomandibular
on the right, problems with her
broken teeth; inability to drive due
to pain experienced and disruptions in her sleeping patterns.
[22]
I have also considered other cases for guidance. In Mgudlwa v RAF
20IO QOD E3-1 (ECM) the
plaintiff in that case suffered a fractured
femur and a fractured tibia. He had a leg-length discrepancy of 5cm.
It was anticipated
that he would require a knee replacement surgery
and realignment of the femur in the future. He was awarded an amount
ofR300 000,
the current value of which is R517 000.
[23]
In Ndaba v RAF 2011 (6E3) QOD 14 (ECB) the plaintiff in that case
suffered a pelvic fracture,
femur and tibia fracture, a knee injury
and a ruptured bladder. He was awarded R300 000, the current value of
which is R820 000.
[24]
The orthopedic injuries and the sequelae in the abovementioned cases
are more serious than
the present matter. The plaintiff sustained a
fractured femur which resulted in a leg-length discrepancy of 1.5 cm.
It was anticipated
that he was likely to develop post traumatic
osteo-athritis and would require a hip replacement surgery in the
future. His current
complaints are that he experiences intermittent
pain especially when the weather is cold. He cannot run or carry
heavy objects.
[25]
It is trite that the amount to be awarded for general damages lies in
the discretion of
the court which should be exercised judiciously.
'The amount to be awarded as compensation can only be determined by
the broadest
general considerations and the figure arrived at must
necessarily be uncertain', depending on what the court considers fair
in
the circumstances of the case. (see Sandler v Wholesale Suppliers
Ltd
1941 AD 194)
[26]
I consider an amount of R300 000 (pre-apportionment) to be fair in
the circumstances. The
defendant is therefore liable to pay 80%
thereof to the plaintiff
In
the result I make the following order
1.
The defendant is liable for 80% of the plaintiff's proven damages;
2.
The defendant is hereby ordered to furnish the plaintiff with
a
certificate in terms of
s17(4)
of the
Road Accident Fund Act 56 of
1996
as amended, within 21 days of this order for 80% of the costs of
all further accommodation of the plaintiff in a hospital or nursing
home or treatment of or rendering of services to the plaintiff
arising from injuries sustained in the accident on the 18 August2017;
3.
The plaintiff's claim for loss of earning capacity is dismissed;
4.
The defendant is ordered to pay an amount of R240 000 to the
plaintiff in respect of general damages.
5.
Interest on the abovementioned amount at the applicable rate
calculated from the 15
th
day of this order to date of
payment;
6.
The defendant shall pay the plaintiffs taxed or agreed costs
on a
party and party scale.
P
D KEKANA
ACTING
JUDGE OF THE HIGH COURT
FOR
THE APPLICANT: L.R MOLOPE-MADONDO
FOR
THE RESPONDENT: NO APPEARANCE
DATE
OF HEARING: 19 MAY 2021
DATE
OF JUDGMENT: 09 SEPTEMBER 2021