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[2021] ZANCHC 32
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Moalahi v Road Accident Fund (938/20147) [2021] ZANCHC 32 (23 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
CASE
NO
:
938/20147
DATE
HEARD: 12
MAY 2021
DATE
DELIVERED: 23 JULY
2021
In
the matter between
:
COLIN
MOALAHI
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
Coram:
Snyders AJ
Snyders
AJ:
INTRODUCTION:
[1]
On 28 December 2012, the Plaintiff, an
adult male, obtained a lift from an acquaintance. He was travelling
from Douglas to Kimberley.
He sat in the back
seat of the motor vehicle on the
left-hand side. While they were crossing an intersection, about 4 km
outside of Kimberley, a motor
vehicle travelling in the opposite
direction ignored the stop sign and collided with the vehicle in
which the Plaintiff was travelling.
The Plaintiff sustained serious
injuries and accordingly instituted action against defendant
("the
RAF")
for
the recovery of
damages. The merits were
conceded at 90% in favour of the Plaintiff and the
trial proceeded on the issue of the
quantum of the Plaintiff's damages only.
[2]
The
RAF
is
unrepresented
.
The
trial
on
quantum
was
set
down
for
12
May
2021. The notice of set down was serve
d
,
on
the
RAF
by
e-mail on
10 December 2020. The RAF was also aware
that the matter was enrolled as Ms Wells from the State Attorney was
present at the hearing.
However,
she had no
instructions
to appear. The Plaintiff handed up an affidavit setting out the steps
taken to notify the RAF of the trial. I
was satisfied that the RAF was properly notified of and aware of the
date of trial. The matter
proceeded in the absence of representation
for the RAF.
[3]
I granted the Plaintiff his application
in terms of Rule 38(2) for his expert witnesses to give evidence on
affidavit, to wit, Dr
PA Olivier (orthopaedic surgeon), Ms Coetzee
(clinical psychologist), Ms Potgieter (occupational therapist) and
Munro Forensic Actuaries.
Dr Everd Jacobs (industrial psychologist)
was present in court testify
.
THE
PLAINTIFF'S EVIDENCE:
[4]
As a result of the collision, the
Plaintiff injured his neck when the C2 and C3 vertebrae fractured. He
also injured his left elbow,
left knee and sustained a head and back
injury.
[5]
The Plaintiff underwent two operations
to his neck. When he was discharged from hospital, he could not walk
long distances or dress
himself. He suffered from pins and needles in
his hands and feet. For approximately 6 months after his discharge,
the Plaintiff was
assisted by his mother and girlfriend with bathing
and caring for himself.
[6]
The Plaintiff continues to experience
constant pain, especially in his neck. He cannot perform any tasks
that require him to extend
his arms upward above his
head because it affects his shoulders
and neck.
After
the collision, the Plaintiff
became
aggressive and forgetful. As a result, he was unable to retain his
employment with a certain Mr Louwrens.
[7]
After losing his employment, the
Plaintiff did casual work for short periods of time because he could
not complete tasks expected
of him. During 2014 he was employed
by Mr De Wit. He was permanently employed by Mr De Wit in 2015 where
he worked until 2017.
The Plaintiff testified that Mr De Wit was a
very sympathetic employer. He was, however, dismissed because of his
temper and inability
to work with others. The Plaintiff has been
unemployed since.
[8]
The Plaintiff used to play soccer and
golf and he is no longer able to participate
in these activities due to the
collision.
THE
EXPERT EVIDENCE:
[9]
Dr Everd Jacobs, an industrial
psychologist, testified in Court. He placed his credentials on record
and confirmed the contents of
his report dated 17 February 2016.
[10]
According to the report by Dr Jacobs, the
Plaintiff
struggles
with
his
knee, especially when having to walk
long distances, stand for long or pick up heavy objects.
At the time
of the
accident,
he worked
for
ldstone
Farming
near
Douglas.
He was responsible for general farming functions with crops and
animals. He was employed there since November 2012. After
the
accident he returned to work in June 2013 but resigned in March 2014
because he was no longer able to cope with his
injuries. He had earned a monthly salary of R1 537.00 and was a
contract worker for 8 months in the year.
[11]
After resigning from the Farm, the
Plaintiff worked at a mental hospital as a plumber's assistant on a
6-month contract. From
December 2014, he worked for Mr De Wit
on his farm
and
at his
home.
He
earned
R125.00
per
day
and worked
a
5-day
week. He
struggled
with
the
work
especially
carrying
heavy
objects.
[12]
According to Dr Jacobs, the Plaintiff's
highest level of education is Grade 10 from William Pescod School,
Kimberley. With his employment
history, the Plaintiff can be regarded
as an unskilled worker. As a general worker, it will be required of
the Plaintiff to be fit
and healthy. Dr Jacobs is of the view that
the Plaintiff is unemployable. He cannot do physical work and does
not have the qualifications
to do sedentary work.
[13]
Dr Olivier, the orthopaedic surgeon,
reported that the Plaintiff sustained a fracture to the odontoid
process as well as a fracture
involving the 3
rd
cervical vertebra. He underwent internal fixation but still
experiences mechanical neck pain. Dr Olivier found that the Plaintiff
will probably experience progressively more pain in the future due to
the progressive nature of cervical spondylosis. The Plaintiff
is
expected to undergo a second procedure in approximately 20 years from
the date of the accident and conservative treatment is likely
to
continue on a permanent basis.
[14]
Dr Olivier confirmed that the Plaintiff
would have experienced severe pain for a period of approximately 12
weeks after the accident
and moderate to severe pain for a period of
12 weeks following the anterior cervical fusion. The accident
has resulted in his
inability to perform strenuous physical activity
such as picking up and handling heavy objects, performing strenuous
physical activities,
working with his arms in an overhead position or
performing any manual activities associated with mechanical neck
pain. The fracture
involving the C2 and C3 resulted in a
post-traumatic deformity in the upper cervical area as well as
multilevel disc degeneration.
[15]
Dr Olivier further opined that the
Plaintiff is permanently compromised in his ability to perform
strenuous activities. He has
a whole person impairment of less
than 30% but the injuries to the cervical area are regarded to be
serious orthopaedic injuries
as the Plaintiff is at a significant
disadvantage in his ability to compete in the open market. He will
find it difficult to gain
employment in the
open labour market due to the presence
of permanent functional restrictions as a result of pathology in the
cervical area.
[16]
Ms Potgieter, the occupational
therapist, examined the Plaintiff and set out his current complaints:
constant pain in the neck which
is aggravated by bad weather;
headaches approximately twice a week; stiffness in his neck when he
rises in the morning; constant
pain in his left knee; numbness in his
left leg on a
regular
basis which restricts his movement; short-tempered; forgetful; cannot
pick up objects heavier than 20kg; cannot work on a
ladder; can no
longer play soccer, ride bicycle or run due to the impact and pain on
his knee
;
and
he struggles with work tasks.
[17]
Ms Potgieter found that the Plaintiff
experiences pain with passive movements with the left knee flexion
and extension. His movement
of the cervical spine is limited,
especially with rotation. He has difficulty working with his
arms above his head or when
doing activities which require him to
look up. The Plaintiff's relationship with this girlfriend and mother
of his two children had
deteriorated because he cannot provide for
them as he used to. He also used to be very active but is no longer
able to jog, ride
bicycle nor play soccer after the accident. He has
a depressive mood at times and has had thoughts of suicide. At the
time of the
examination, the Plaintiff was studying Theology through
the South African Bible Institute. The Plaintiff should be able to
work
until retirement age should he continue doing missionary work.
[18]
Ms Potgieter concluded that the
Plaintiff should be compensated for future medical expenses, loss of
income and loss of amenities
of life.
[19]
The Plaintiff was examined by a clinical
psychologist, Ms Coetzee. She confirmed the physical complaints as
listed in the occupational
therapist's report. Additionally, she
noted that the Plaintiff cannot rotate his neck as before. He has to
turn his whole body to
see things on the side; his headaches
can last up to 2 days; he has dizzy
spells which accompany the headaches; his
night
vision is compromised, especially in his right eye; he experiences
pain in his right ear and feels that he does not hear as
well as he
used to with his right ear
.
[20]
Ms Coetzee confirmed that the Plaintiff
is forgetful and needs constant reminders, is absent-minded,
constantly loses or misplaces
things, struggles to concentrate for
long and is often told that he lacks insight and that his reasoning
is illogical. The Plaintiff's metal
efficiency has dropped, especially with regard to
memory and attention. He is more prone
to aggression and he is both verbally and physically aggressive. The
Plaintiff's family perceive
him to be emotionally distant, less
tender-hearted and irritable
.
[21]
Ms Coetzee outlined that the Plaintiff
was disorientated when he arrived at Kimberley Hospital after the
accident, and had sustained
a cervical fracture and
a closed head injury. Based on a CT
scan, she found that the Plaintiff's head injury is in the mild to
moderate range, with evidence
of haemorrhages in the
parieto-occipital lobe. His reduced tact, empathy and aggression
suggest possible frontal lobe involvement.
[22]
The clinical psychologist concluded that
the accident has had an adverse effect
on his physical, neuropsychological and
emotional well-being. He struggles to maintain stable employment. He
will require psychotherapy
in the future to assist him with coming to
terms with his altered physical and cognitive state and
developing appropriate goals and optimal
coping strategies. The Plaintiff is regarded as vulnerable to more
serious mental illness.
[23]
The calculation on past and future loss
of income by Munro Actuaries was based on the fact that the Plaintiff
was unable to return
to work to date and is expected to remain
unemployed in the future as per the findings by the industrial
psychologist and orthopaedic
surgeon. The loss of income was
calculated as follows:
23.1
Past loss of
income:
R326 400.00
23.2
Future loss of income:
R1
708 600.00
Total:
R2
035 000.00
[24]
The Defendant had filed two expert
reports, Dr Moloto (orthopaedic surgeon) and Mr Moagi (occupational
therapist). These reports
were not considered as no affidavits
were filed by the experts to confirm the contents of the report, nor
were the witnesses in Court
to testify. The Plaintiff's report by Dr
Wilkinson (the
neurosurgeon)
was similarly not considered in coming
to a finding herein.
PAST
AND
FUTURE
MEDICAL
EXPENSES:
[25]
Although the Plaintiff claimed for past
medical expenses, no evidence was lead on this aspect, nor any
vouchers presented. The Plaintiff
has not made out a case for past
medical expenses.
[26]
Mr Jankowitz, for the Plaintiff, sought
an order that the RAF undertake to pay the Plaintiff's future medical
expenses in terms of
section 17(4)(a) of
THE
ROAD ACCIDENT FUND ACT,
56 of 1996
("the Act').
[27]
I am satisfied that the Plaintiff has
proven that he will incur medical expenses in
the future based on the reports by Dr
Olivier, Ms Potgieter and Ms Coetzee and
that the RAF should compensate the
Plaintiff for such expenses.
LOSS
OF EARNINGS:
[28]
The Plaintiff's limited education and
skills, his age and his injuries make it highly
unlikely that he will find suitable
employment. It has been shown that the Plaintiff is compromised
in the labour market.
[29]
The actuary submitted that normal
contingencies should apply. Contingency deductions provide for any
future events or circumstances
which is possible but
cannot be predicted with certainty. By
illustration: longevity, loss of employment, early death, and
promotion prospects, and so forth.
[30]
The contingencies remain, however,
within the prerogative of the Court taking into account what is
appropriate, fair and reasonable.
[31]
Mr Jankowitz argued that a no
contingencies should be applied to past loss of earnings and a 17%
contingency applied to future loss
of earnings.
[32]
I do not find any reason to deviate from
the so-called normal contingency fee deductions which are applied to
past and future loss
of earnings. The Plaintiff is
regarded as totally unemployable but did
have employment for a limited time after the accident. He is an
unskilled worker but cannot
do physical activity. He
is not qualified to do sedentary work.
Accordingly
,
the
amounts awarded will be:
32.1
Past loss of earnings with a 5%
contingency
fee
deduction:
R310
080.00
32.1.1
Future
loss of earnings
with
a 15% contingency fee
deduction
R1
452 310.00
32.2
Total loss of earnings:
-
before the 90/10
apportionment
R1
762 390.00
-
after the
apportionment
R1
586 151.00
GENERAL
DAMAGES:
[33]
Dr
Olivier, the orthopaedic surgeon, found that the Plaintiff qualifies
for general damages based on the narrative test. I must decide
whether the Plaintiff should be compensated for pain and suffering,
disfigurement, disablement, loss of amenities of life, shock
and
discomfort. In determining whether the Plaintiff should be so
compensated, the remarks in Road
Accident
Fund v Marunga
[1]
are
instructive:
"This
Court has repeatedly stated that in cases in which the question of
general damages comprising pain and suffering, disfigurement,
permanent disability and loss of amenities of life arises a trial
Court in considering all the facts and circumstances
of a case has a wide discretion
to award what it considers to be fair and adequate compensation to
the injured party
..."
[34]
In
the matter of
Dickson
v SA Mutual
Fire
lnsurance
[2]
,
the
Plaintiff
was
awarded R10 000.00 for general damages for two
cervical
fractures.
In
that
matter, the Plaintiff fractured the C7 and C11 vertebrae and the
Plaintiff herein fractured
the
C2 and C3 vertebrae. In that
matter,
the
Plaintiff
also
suffered
from
a
stiff neck.
The
current
value
of
the award
in
that matter
is
R408
000.00.
[35]
In
Lawson
v RAF
[3]
,
the
Plaintiff suffered a spinal injury as he had sustained fractures of
the L2, L3 and L4 on the right side of his spine together
with an
L4/L5 disc extrusion with L4 nerve route compression. The Plaintiff
was in continual discomfort. However, in that matter,
the Plaintiff
was a medical doctor pursuing a career as a surgeon. Due to the
accident, he could not pursue that career but
had to enter into the
field of specialist anaesthetist instead. Additionally,
the Plaintiff was also a well-accomplished
sportsman. The Plaintiff
was awarded general damages in the sum of R300 000.00 with a current
value of R517 000.00.
[36]
A
concussive head injury of moderate degree was sustained by the
Plaintiff in the matter of
Hall
v RAF
[4]
.
The
Plaintiff was awarded general damages in the sum of R700 000.00 which
equates to R1 087 000.00 in current value. The Plaintiff
in that
matter also sustained a fracture of the left humerus; fractured ribs
on the left side; a left sixth cranial nerve lesion;
soft tissue
spinal injuries of the neck and back; and various abrasions.
[37]
In
the matter of
MM
v RAF
[5]
,
the
Plaintiff was diagnosed with a traumatic but moderate brain injury,
compression wedge fracture L2, L3 and L4, fractured
right tibia
and fibula, fractured right pubic rami and ischium. The outcome
diagnosis was posttraumatic neurocognitive/ neuropsychological
disorder, post concussion dizziness, mechanical back pain,
scarring, mood disorder secondary to the musculoskeletal
syndrome
and changes in life circumstances. There had been
considerable changes in physical function, mood and
behaviour that
were impacting on amenities, life roles and
circumstances. The Plaintiff was awarded damages in the sum of R850
000.00.
The current value of the award is R923 000.00.
[38]
The Plaintiff has suffered pain,
discomfort, disability and loss of amenities of life after the
accident. He had injured his left
elbow, left knee, fractured his C2
and C3 vertebrae and sustained a closed head injury, which is in the
mild to moderate range. The
Plaintiff underwent two surgeries
on his neck. The fracture of the C2 and C3 vertebrae caused a
post-traumatic deformity
in the cervical area and multilevel disc
degeneration. He experiences constant headaches and neck pain, as
well as constant pain
in his left knee and numbness in the left leg.
The Plaintiff has suffered from mood and behavioural changes after
the accident. He
is limited in his physical activities, which has
curtailed his job prospects. The Plaintiff can no longer participate
in soccer,
jogging or cycling.
[39]
After considering all the factors above,
I am of the view that general damages in
the amount of R900 000.00 should be
awarded to the Plaintiff. Factoring in the apportionment of damages,
this amount would be reduced
to R810 000.00.
[40]
Accordingly, the Plaintiff will be
awarded the following amounts:
31.1
Past and future loss of
income
R1
586 151.00
31.2
General
damages
R810
000.00
[32]
In the premise, the following order is
made:
1.
The Defendant is liable for 90% of
the Plaintiff's damages.
2.
The Defendant shall make payment to the
Plaintiff in the sum of R2 396 151.00 (TWO MILLION
THREE HUNDRED AND NINETY
SIX THOUSAND ONE HUNDRED AND FIFTY ONE
RAND) which amount is computed as follows:
2.1 Past
and future loss of income: R1586151.00
2.2
General
damages:
R810
000.00
3.
The Defendant shall furnish an
undertaking to the Plaintiff in terms of
Section
17(4)
(a) of the
Road Accident Fund Act 56 of 1996
,
for
90% of the costs of the future accommodation of the Plaintiff in a
hospital or nursing home or the treatment of or the rendering
of a
service or the supplying of goods to him arising out of injuries
sustained by him in the motor vehicle collision of 28
December
2012, in terms of which undertaking the Defendant
will be obliged to compensate him in respect
of
the said costs after the costs have been incurred and on proof
thereof.
4.
The Defendant shall ay the Plaintiff's
taxed or agreed costs on the High Court Scale, as between party and
party, including but not
limited to:
4.1
All costs attendant upon the obtaining
of payment of the capital amount;
4.2
The reasonable costs of obtaining all
medico-legal reports,
inclusive
of addendum reports, RAF4 serious injury forms and the cost of
Radiological investigations done by the Plaintiff's
experts
which
were
furnished
to
the
Defendant
and
further all costs associated with
attendance of medical
legal
assessments including but not limited to travel, accommodation, food
and court attendance;
4.3
The reasonable taxable preparation and
reservation fees, if any, of the following experts being:
4.3.1
Dr
Everd
Jacobs,
Industrial
Psychologist;
4.3.2
Ms
Mignon
Coetzee, Clinical Psychologist;
4.3.3
Ms Nicky Potgieter, Occupational
Therapist;
4.3.4
Dr Pieter A Olivier (Orthopaedic
Surgeon); and
4.3.5
Munro Forensic
Actuaries,
Actuary.
4.4
The costs of the necessary witnesses of
attending the trial,
which
are:
4.4.1
Mr
Colin
Moalahi (Plaintiff);
4.4.2
Dr
Everd
Jacobs
4.5
The taxed or agreed costs of Plaintiff's
counsel.
5
In the event that costs are not agreed,
the Plaintiff will be entitled to have the costs provided for in this
order taxed by the Taxing
Master of the Northern Cape High Court.
6
The payment provisions in respect of the
aforegoing are to be effected as follows:
6.1
Payment of the capital amount shall be
effected within 180
(one
hundred and eighty) days from date hereof (the
"due
date") to the Plaintiff's
attorneys of record;
6.2
Payment of the taxed or agreed costs
reflected above shall
be
effected within 180 (one hundred and eighty) days of agreement or
taxation (the
"due date")
and shall likewise be paid to the
Plaintiff's attorneys of record
;
6.3
Should the capital amount or
costs not be paid by the respective due dates, the Defendant will be
liable for interest thereon at the
prescribed rate of interest.
J
SNYDERS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For
the plaintif
f
:
ADV D JANKOWITZ
(oio
Joubert Attorneys)
For
the defendant:
NO
APPEARANCE
[1]
2003
(5) SA 164
(SCA) at para 23
[2]
1977 (2) C&B 725 (C)
[3]
2010
(6) QOD C4-l(ECP)
[4]
2013
(6) QOD J2-l
15
(KZD)
[5]
2019
(7) QOD B4-92 (FB)