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[2019] ZAGPPHC 51
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Ngomane v Road Accident Fund (1778/16) [2019] ZAGPPHC 51 (5 March 2019)

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED
CASE NO: 1778/16
5/3/2019
In
the matter between:
ZWELITHINI
SKHUMBUZO NGOMANE

PLAINTIFF
And
ROAD
ACCIDENT
FUND

DEFENDANT
JUDGMENT
COLLIS
J:
INTRODUCTION
1.
This
is an action wherein the Plaintiff claims damages arising from
injuries sustained by the Plaintiff as passenger in a collision
which
occurred on 10 May 2013.
2.
In
the particulars of claim at paragraph 6 thereof the Plaintiff alleges
to have sustained the following injuries:
6.1
soft tissue injury.
6.2
tear drop fracture of the C5;
6.3
Laceration on his right wrist.
3.
Furthermore at paragraph 8 thereof the
plaintiff alleges as follows.
"As a result of the aforesaid injuries
Plaintiff has suffered damage and is entitled to damages in the sum
of R855 000, 00
made up as follows:
8.1.1
Past medical/ Hospital expenses R100
000, 00
8.1.2
Future medical expenses R300 000, 00
8.1.3
Past and future loss of
Earninals/earning capacity R 350 000, 00
8.1.4
General Damages R500 000, 00"
8.2
The amount claimed for medical and
Hospital expenses is an estimated amount and the Plaintiff is not
currently in a position to
give a breakdown of the amount claimed.
8.3
The amount claimed for future medical
expenses is an estimated amount and the Plaintiff is not currently in
a position to give a
breakdown of the amount claimed.
8.4
The amount claimed for past and future
loss of earning capacity is an estimated amount and the Plaintiff is
not currently in a position
to give a breakdown of the amount
claimed.
8.5
The amount claimed for general Damages
is a global amount for pain and suffering loss of amenities and the
non-pecuniary aspects
of temporary and permanent disability".
4.
At
the commencement of the proceedings and at the request of the parties
the court was requested to record the following:
4.1
That
the issue of liability has become settled on the basis that the
Defendant shall pay 100% of the Plaintiff's agreed or proven
damages;
4.2
That
the Plaintiff was abandoning his claim in respect of past medical
expenses;
4.3
That
the Plaintiff's claim in respect of general damages has become
settled between the parties in the amount of R400 000,00;
4.4
That
the Defendant would provide the Plaintiff with an undertaking in
terms of section 17(4)(a) of the Act in settlement of the
plaintiff's
claim in respect of future medical expenses;
4.5
The
Defendant admitted the contents and correctness of the Plaintiff's
expect medico-legal reports which were handed in and marked
as
exhibit
A;
4.6
The
Plaintiff admitted the contents and correctness of the Defendant's
expect medico-legal reports, which were handed in and marked
as
Exhibit B;
4.7
By
agreement between the parties the contents and correctness of the
joint minutes prepared by the experts, were handed in and marked
as
exhibits C.
5.
The
court further admitted the above-listed report into evidence without
the need to call the individual experts to testify thereto.
DISPUTED
ISSUES
6.
This
court had to determine the extent of the plaintiff's past and future
loss of earnings and earning capacity.
EVIDENCE
7.
The
plaintiff, Mr Zwelithini Ngomane, sustained personal injuries in a
motor vehicle collision that occurred on 11 May 2013. At
the time of
the collision he was employed by the National Lottery Board occupying
the position of assistant company secretary.
He is an LLB graduate
from the University of Zululand.
8.
During
2015, he voluntarily resigned from his position to take up a position
overseeing the farm activities of his family sugarcane
farm. His net
salary during this period was approximately R75 029, 37.
9.
During
the collision he sustained the following injuries:
9.1
Right hip contusion
9.2
Cervical spine trauma consisting of a
teardrop fracture of C5
9.3
Contusion both shoulders
9.4
Laceration right wrist.
[1]
10.
Following
the collision the he was treated at the Tembisa Hospital where the
laceration to his wrist was sutured and the C5 teardrop
fracture was
treated with a hard collar and analgesics.
EXPERT
EVIDENCE
11.
In their joint minute, the Orthopaedic
surgeons recorded as follows:
11.1
That
the plaintiff's current complaints consist of pins and needles in
both thumbs and index fingers; pain in both his legs when
standing or
walking for too long.
11.2
Back,
shoulder and neck pain and also pain in his right hip area.
11.3
Headaches
and loss of power in both arms.
12.
The
Orthopaedic Surgeons were in agreement that the claimant's work
capabilities; work potential; age of retirement; loss of amenities
of
daily living needs to be assessed by expert opinion of the
occupational therapist and industrial psychologist.
13.
The
experts further opined that his longevity will not be influenced
except in the case of surgery.
14.
Dr
Booyse further noted that the plaintiff must have suffered a severe
psychological problem due to the circumstances of the injury
and the
expert recommended conservative treatment in the amount of R50 000,
00.
15.
Dr
Booyse was of the opinion that the plaintiff sustained a 26 % whole
person impairment and although below the 30% threshold, he
was of the
opinion that the plaintiff sustained a serious injury and qualifies
via
the
narrative test as set out in his report.
16.
Dr
Ngcoya rated the plaintiff's whole person impairment at 6 % and he
was of the opinion that the plaintiff did not suffer a serious

injury.
17.
The
Occupational Therapists in their joint minute made the following
observations:
[2]
18.
Prior
to the collision that the plaintiff held the occupation of Assistant
Secretary which job tasks would have fallen within the
parameters of
sedentary to light physical nature depending on the task, duration of
participation in such a task as well as weights
handled. He reported
to Ms Doran that he decided to resign due to the fact that he was
experiencing difficulties with his memory,
became forgetful as well
as receiving a lack of support from his fellow colleagues. To Ms
Doran he further indicated that he was
forgetful, irritable, could
not recall his acts, and suffered from poor concentration and that he
felt helpless.
19.
The
experts were in agreement that on a purely physical level that Mr
Ngomane did retain the physical ability to perform work tasks
of a
sedentary to light nature, but neither of these could be exerted on a
constant basis (67% - 100% of the time) equivalent to
his
pre-accident position. The occupational therapists agree that as a
result of the collision that the injuries which the plaintiff
had
sustained not only impacted on his physical abilities but also on his
psychological functioning. As a result thereof the plaintiff
finds
himself unemployed post­ collision and having challenging
inter-personal relationships. They further were in agreement
that due
to his ongoing symptomology, the plaintiff in future would probably
always need to approach and execute tasks in an adjusted
manner.
20.
The Clinical Psychologists Ms Cramer and
Ms Tromp also individually filed expert reports. During their joint
meeting as experts
they recorded that they were informed as at time
of the meeting that the plaintiff suffered from concentration and
memory complaints.
He also exhibited fatigability, mood problems,
insomnia and increased irritability. They both found evidence of
post­ traumatic
stress symptoms and they were in agreement that
he is depressed. He also displayed a loss of drive and motivation in
life. The
experts were further in agreement that although the
plaintiff retains the physical and intellectual capacity to work he
has suffered
from a deteriorating mental health since the accident,
which has hampered him in pursuit of suitable employment in spite of
his
qualifications. They were further in agreement that the plaintiff
has been left emotionally vulnerable and lacking in resilience
and
that his quality of life has been left severely impacted.
21.
The
Industrial Psychologists met on 26 November 2018. During such meeting
they agreed that at the time of the collision that the
plaintiff was
almost 38 years old and employed by the National Lottery Board as a
Legal Administration Officer. The experts agree
that in all
likelihood the plaintiff’s retirement age would have been 65
years of age furthermore given his level of progression
as at
Peterson 04 as at time of the collision, had it not been for the
collision, he would have progressed at a more rapid pace
than would
usually be expected. Furthermore taking into account his Patterson
level as at time of the collision post collision
he would have been
promoted to company secretary and with the necessary skill set
development and experience he would have been
able to reach Peterson
05 as a career ceiling at age 45 years.
22.
Post
morbid the experts further agreed that the plaintiff returned to his
pre­ accident employment after recuperating. Furthermore
that the
plaintiff voluntarily resigned from his position to take up
employment at his family's farm. He however has been unemployed
since
December 2015. Having regard to all other expert reports presented to
them, they opined that the plaintiff would be able
to return and
continue to work in the open labour market and will be able to
progress in his career path and likely earnings as
anticipated in the
pre­ accident scenario until retirement age 65 years.
EVALUATION
23.
Now
in determining the plaintiff's post and future loss of earning and
earning capacity this court has to determine whether post-accident

and as a result of the
sequelae
of
the collision, he has been unable to return to his position as a
Legal Administration Officer.
24.
Pre-accident
the experts agreed that the plaintiff was employed in this capacity
earning an income at Paterson level 0 4. Post-accident
the experts
further agreed albeit that the plaintiff returned to employment and
later resigned voluntary in all likelihood he would
have reached his
career ceiling at Paterson level 05 at age 45 years.
25.
In
Bridgman NO v Road Accident Fund
2002 (1) ALLSA 1
(CPD) the court
held that "in order to claim compensation for patrimonial loss a
plaintiff must discharge the onus of proving
on a balance of
probabilities that such loss has indeed occurred. That does not
necessarily mean that the plaintiff is required
to prove the loss
with mathematical precision however the plaintiff is required to
place before the court all evidence reasonably
available to enable
the court to qualify the damages and to make an appropriate award in
his favour."
26.
In
Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at para [36] and [37] the following is stated
relative to expert evidence and opinions of expert witnesses:
"[36] That being so what is required in
the evaluation of such evidence is to determine whether and to what
extent their opinions
advanced are founded on logical reasoning. That
is the thrust of the decision of the House of Lords in the medical
negligence case
of Bolitho v City and Hackney Health Authority
(1997)
UKHL 46
[199] AC 232 [HL(E)]. With the relevant dicta in the speech
of Lord Browne Wilkinson we respectively agree. Summarized they are

to the following effect.
[37] The court is not bound to absolved a
defendant from liability for allegedly negligent medical treatment or
diagnosis just because
evidence of expert opinion, albeit genuinely
held is that the treatment or diagnosis in issue accorded with sound
medical practice.
The court must be satisfied that such opinion has a
logical basis in other words that the expert has considered
comparative risks
and benefits and has reached 'a defensible
conclusion.' "
27.
In
making an assessment on the conclusions opined by the experts and the
weight to be attach to their opinions especially to that
of the
Industrial Psychologists relative to the projective earnings of the
plaintiff and applying the above principles
in
casu
I have had regard to the
undisputed facts in the matter. I list them to be the following:
27.1
Pre-accident
the plaintiff was gainfully employed in the position of Legal
Administration Officer.
27.2
Following
the collision he was able to return to his farmer employment but
voluntarily resigned from this position.
27.3
The
experts opined that he would be able to return and continue to work
in the open labour market and would be able to progress
in his career
path and likely earnings as anticipated in the pre-accident scenario
until retirement age of 65 years.
28.
On
behalf of the plaintiff, Mr Potgieter, prepared an actuarial report.
Same was marked Exhibit A page 10 -16. In terms of the said
report
the actuary approved contingency deductions of 5/0 % on past income
and 20/30 % on future income. Regarding the future contingencies
the
application of 10 % (pre-morbid) and 20 % (past-morbid) was applied.
29.
Given
the totality of the evidence presented, I am satisfied that the
plaintiff has discharged his
onus
of
presenting reliable evidence in proving his loss of earnings and /or
earning capacity.
30.
Having
regard further to the decision Goodall v President Insurance
1978 (1)
SA 389
0N) and the sliding scale method laid down in this decision I
am of the opinion that the percentages contingency deductions as
proposed by the actuary is both fair and just.
ORDER
31.
In the result, the following order is
made:
31.1
The Plaintiff is entitled to 100% of his
proven/agreed damages;
31.2
The Defendant shall pay the Plaintiff
the total amount of R 2 150 377, 15 (Two Million One Hundred and
Fifty Thousand Three Hundred
and Seventy Seven Rand and Fifteen
Cents) in respect of both his past and future loss of earning and
earning capacity as well as
his general damages;
31.3
The said amount to be paid into the
Plaintiffs attorneys Trust Account No: 03 228 5280 Standard Bank
Hatfield;
31.4
Interest on the above amount at a rate
of 10,25% per annum from a date 14 days after the date of judgment to
date of payment;
31.5
The Defendant is ordered to furnish the
Plaintiff with an undertaking in terms of
section 17(4)
(a) of the
Road Accident Fund Act 56 of 1996
in respect of future accommodation
in a hospital or nursing home or treatment of and or rendering of a
service or supplying of
goods to him arising from injuries sustained
by him in a collision which occurred on 10 May 2013 only after the
costs have been
incurred.
31.6
The Defendant shall pay the Plaintiff's
taxed or agreed party and party costs on the High Court Scale to
date, subject thereto that
such costs shall include the following:
31.6.1
The
costs of Plaintiff's counsel;
31.6.2
The
costs of all medico-legal, actuarial, addendum and joint reports
served by the Plaintiff as well as such reports furnished to
the
defendant or its attorney or in the Defendant's possession including
the costs of any investigations requested by the relevant
experts;
31.6.3
The
qualifying fees of the experts referred to in paragraph 31.6.2 above;
31.6.4
The
reservation and preparation fees of the exerts referred to in
paragraph 31.6.2 if any;
31.6.5
The
attendance fees of A. Cramer, the Clinical Psychologist;
31.6.6
The
reasonable costs incurred by and on behalf of the Plaintiff as well
as the costs consequent to attending the medico-legal examination
of
both parties;
31.6.7
The
costs of all necessary witnesses and or the Plaintiff who attended
court.
COLLIS J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
Appearances:
For the
Plaintiff

: Adv. A P.J Bouwer
Attorney
of the Plaintiff
: Schutte
De Jong Inc.
For
the Defendant

: Adv. E. Moukangwe
Attorney
for the Defendant
: Tsebane Molaba Inc.
Date
of Hearing

: 27 November 2018
Date
of Judgment

: 05 March 2019
[1]
Exhibit C Page 3 - 6
[2]
Exhibit
C pages 7 - 10