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[2020] ZAGPPHC 17
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Tshabalala v Road Accident Fund (9711/2016) [2020] ZAGPPHC 17 (21 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case No. 9711/2016
21/2/2020
In
the matter between:
LUCIA
DANASILE TSHABALALA
PLAINTIFF
And
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
MILLAR,
A J
1.
The
plaintiff, a passenger, was injured in a multiple motor vehicle
collision that occurred on 10 March 2015. The trial was
set
down for hearing on 18 February 2020.
2.
Notwithstanding
the service of summons on 9 February 2016 on the defendant, and it
had elected to defend the case, when the matter
was called the
defendant had failed in its preparations to arrange for the plaintiff
to be examined by any medical experts. Furthermore,
although the
plaintiff was injured as a passenger in a multiple vehicle collision,
liability was only conceded shortly before the
trial commenced.
3.
By
agreement between the parties the reports filed by the plaintiff,
from an orthopaedic surgeon, a psychiatrist, an occupational
therapist, an industrial psychologist and an actuary were admitted
into evidence as being common cause as to the facts and opinions
contained in those reports.
4.
It
was argued by counsel for the defendant that the plaintiff ought to
have obtained a report from a clinical psychologist to express
an
opinion on her travel related anxiety disorder and depression. These
had been diagnosed by the psychiatrist and he was not qualified
to
express an opinion on these aspects. This argument is without any
merit.
5.
It
was further agreed between the parties that the outstanding issues
between them relating to the quantum of damages be argued
from those
reports and that no evidence would be led by either party. An
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
was tendered and accepted, in settlement of the
plaintiff's claim for future medical, hospital and associated
expenses.
6.
The
issues left to be determined and which were argued were in regard to
the claims for loss of income and for general damages.
7.
The
plaintiff is a 45-year-old woman who has a grade 11 level of
education. At the time of the collision she was working for an
automobile sales company as a cleaner and polisher of vehicles as
well as general cleaning work in the office of the business.
The work
was mainly physical in nature and she was earning R4 040.00 per
month. After injury she returned to work for a short
while but was
unable to cope and off often. Her employer was sympathetic and
accommodated these absences.
8.
The
business closed down at the end of 2016 and besides a month working
as a nanny, the plaintiff has never worked again. The plaintiff
was
unable to continue with the work as a nanny as she was tasked with
looking after a 3-month-old baby and due to her injuries
was unable
to cope with the picking up and holding of the baby.
9.
The
medical experts are all agreed that the combination of her
circumstances and the injuries that she sustained have rendered the
plaintiff unemployable on the open labour market
10.
The
actuary has calculated the plaintiff's loss based on her earnings at
the time of the collision. The calculated past loss was
in the sum of
R209 305.00 and the future loss R906 851.00 No
contingencies were deducted.
11.
Counsel
for the defendant argued that the past loss was not correctly
calculated because the defendant could not be held liable
for the
fact that the plaintiff's employer had closed down in 2016. He
argued that the plaintiff would otherwise have
continued in
sympathetic employment. The fact that the plaintiff was
rendered unemployable as a result of the injuries
sustained in the
collision is to my mind dispositive of the argument. The
employer honored the employment contract for so
long as the business
operated and if the employment post-accident was truly sympathetic
then in any event the defendant is not
entitled to the benefit of a
third party's generosity to the plaintiff. The law on this is
well established.
12.
Counsel
for the plaintiff argued that in respect of the contingencies to be
deducted, a 5% deduction should be made from the past
loss of income.
Counsel for the defendant argued that given the closure of the
business, 10% was more appropriate. For the reasons
I have set out
above, I am of the view that the closure of the business does not
militate the deduction of a contingency in excess
of that argued by
the plaintiff.
13.
In
regard to future loss of income, counsel for the plaintiff argued for
a 10% contingency deduction. This was predicated on ½
% per
year for 20 years to retirement at age 65. The defendant argued for
15% but could offer no basis other than to argue that
10% was too
modest. I find that 10% is the appropriate deduction to be made from
the future loss of earnings.
14.
The
total of the past loss of earnings is R209 305.00 less 5% = R198
839. 00. The total of the future loss of earnings
is R906 85.00
less 10% = R816 165.00. The total combined loss of
earnings is the total of the two added together in
the sum of R1 105
004. 00. This is the amount I intend to award for this head of
damages.
15.
In
regard to general damages, having regard to the totality of the
injuries suffered by the plaintiff and their sequelae, counsel
for
the plaintiff argued that an award of R850 000.00 was
appropriate. I was referred to various unreported decisions
in
this regard. Counsel for the defendant for his part was able to
distinguish the cases that we referred to from the facts
in the
present case. He argued that an award of between R400 000.00
and R500 000.00 was more appropriate.
16.
The
plaintiff suffered a back injury, an abdominal injury and besides
ongoing physical sequelae for these physical injuries suffers
from
psychiatric sequelae in the form of depression, and an
accident-travel -related anxiety disorder. It is trite that the
award of general damages a matter falling within the discretion of
the trial court and that award in other similar cases merely
provide
guidance. On a consideration of all the injuries and their
sequelae and the arguments advanced by counsel I am of
the view that
an award of R450 000.00 is appropriate and this is the amount I
intend to award.
17.
The
parties handed up a draft order in which they set out their agreement
in respect of costs. Furthermore, provision has been made
for the
creation of an
inter
vivos
trust
to protect the plaintiff' award. The plaintiff confirmed that
the establishing of the trust had been discussed with
her and that
she agreed thereto.
18.
In
the circumstances I make the draft, into which I have inserted the
amounts I intend awarding for loss of income and general damages,
that is attached hereto marked “XYZ” an order of court.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
18 FEBRUARY 220
JUDGMENT
DELIVERED ON:
21 FEBRUARY 2020
COUNSEL
FOR THE PLAINTIFF:
ADV S GULDENPFENNIG
SC
INSTRUCTED
BY:
MAREE & BRAND ATTORNEYS
REFERENCE:
MR
MAREE
COUNSEL
FOR THE DEFENDANT:
ADV N MHLONGO
INSTRUCTED
BY:
RAMBEVHA MOROBANE ATTORNEYS
REFERENCE:
MR
T KGOMOMMU