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[2019] ZAFSHC 52
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Litseo v Road Accident Fund (5637/2016) [2019] ZAFSHC 52 (2 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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and
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to Magistrates:
NO
Case number: 5637/2016
In
the matter between:
ELIZABETH
MAKUBERE LITSEO
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
CORAM:
DAFFUE, J
HEARD
ON:
26 & 27 MARCH 2019
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
2
MAY 2019
I
Introduction
[1]
On
30 May 2017 the parties settled the merits of plaintiff’s claim
against the Road Accident Fund (“RAF”) and
by agreement
an appropriate order was made. The RAF was also ordered to
furnish the usual undertaking in terms of
s 17(4)(a)
of the
Road
Accident Fund Act, 56 of 1996
.
[2]
As
the parties could not reach a settlement in respect of the remaining
disputes, the matter went on trial and it is now my task
to write a
judgment, incorporating appropriate orders.
II
The parties
[3]
Plaintiff
is Me Makubere Elizabeth Litseo, a 47 year old Lesotho citizen.
She was 44 years old when she was injured in a motor
vehicle
collision which occurred on 29 November 2015. She was
represented during the trial by Adv MDJ Steenkamp, duly instructed
by
Du Plooy Attorneys.
[4]
Defendant
is the RAF represented by Adv J Nkhahle, duly instructed by Maduba
Attorneys.
III
The disputes
[5]
Plaintiff’s
claims for past and future loss of income and general damages are in
dispute, mainly because the RAF was not prepared
to accept
plaintiff’s version of her pre-morbid income as turned out
during her cross-examination.
IV
Plaintiff’s
viva voce
evidence and an evaluation thereof
[6]
Plaintiff, a married woman and Lesotho citizen, worked as a machinist
at a clothing factory in
Lesotho for about ten years until
2005/2006. Since then and until the collision in which she was
injured, she worked as a
hawker. According to her she sold
clothing which she bought in Gauteng from time to time –
apparently every fortnight
– as well as vegetables which she
and he husband grew. She also planted sorghum which she sold.
[7] Plaintiff’s
version in respect of her pre-morbid income-generating activities
changed.
Although not dealt with in her evidence, I cannot
ignore her affidavit dated 26 January 2016, deposed to two months
after the collision,
which accompanied her claim documents. In
this document she stated that she was a hawker selling clothing and
vegetables,
earning approximately R3 000.00 per month. She
never mentioned in this affidavit or to any of the experts that she
also
grew and sold sorghum. In consultation with Mrs Kheswa,
the RAF’s Industrial Psychologist, she also did not refer to
her clothing trade.
[8] Plaintiff
instructed her lawyer soon after the collision and I would have
expected the lawyer
to request her to safe-guard all documentation
pertaining to her business. I accept that plaintiff, an
informal trader, could
not be expected to keep proper financial
records, but the dearth of any records is of concern. Surely,
plaintiff should have
been able to obtain records from her
supplier(s) in Gauteng to at least prove her costs of sales.
Invoices and receipts would
have served as objective and documentary
evidence to support plaintiff’s version, especially bearing in
mind the discrepancies.
[9] It
was not easy to establish if plaintiff understands the concepts of
turnover, gross profit
and nett profit. Apparently she believed
that her alleged 100% mark-up on the clothing constituted her nett
income and for
the moment forgot expenses such as
inter alia
travelling costs. Ultimately it appeared from her evidence that
she made a net profit of about R2 500.00 to R3 000.00
per
month on the sale of clothing, less than R1 000.00 per month in
respect of vegetable sales over a five month period per
year and
between R9 000.00 and R10 000.00 per year on her sorghum
sales. She and her husband still grow and sell
vegetables in
bulk from home and their income is about R600.00 per month during a
five month season. As said, there is no
supporting documents to
substantiate these sales.
[10]
The admitted reports and evidence of Dr Oelofse are clear:
plaintiff cannot work as a hawker
anymore. She cannot push a
wheelbarrow containing vegetables as before or travel up and down to
Gauteng to buy clothing stock.
The only issue that needs to be
considered is the veracity of plaintiff’s evidence relating to
her pre-morbid income in order
to determine her past and future loss
of income. The claim for loss of income was amended and
increased substantially just
prior to the quantum trial, leaving one
with the sense that plaintiff’s version to her lawyer changed
with the time.
Although her evidence is not contradicted, it
does not have to be accepted as credible in all respects if
sufficient doubt has
been cast upon it. I have mentioned the
lack of documentary evidence. Plaintiff testified that she and
her husband
worked together in order to grow the vegetables and
presumably sorghum as well, if this evidence is accepted for the sake
of the
argument. The effect thereof is that she personally did
not earn all the income from her vegetable and sorghum sales as her
husband should be entitled to a portion. She failed to call her
husband to confirm her version and no reasons have been advanced
for
such failure. Having said this, it must be accepted that
plaintiff earned some income pre-morbid. This will be
dealt
with again
infra.
[11]
Plaintiff testified about her disability which I accept to be
permanent based on the evidence of Dr Oelofse
referred to
infra
.
She must have suffered severe pain and is still suffering pain and
extreme discomfort. She was hospitalised for two
months until
January 2016 whereafter she was bed-ridden for a further two months.
Thereafter she ambulated with a wheelchair
until Jun/July 2016.
Since then she has been ambulating with a walking frame. She
cannot sit or stand for long periods
and when seated needs to elevate
her legs to avoid swelling. She was healthy and enjoyed
gardening before being injured.
She used to transport her
vegetables by pushing a wheelbarrow, but post-morbid has lost her
ability to perform most of her previous
income-generating
activities. Although she worked as a machinist at a clothing
factory as mentioned, she cannot operate a
sewing machine at all.
Now, her husband has to be in close proximity all the time to support
her.
V
The injuries of an orthopaedic nature
[12]
Dr Oelofse, a well-known orthopaedic surgeon whose expertise and
evidence have not been challenged, testified
about plaintiff’s
injuries. His detailed report, confirmed under oath, was
admitted as exhibit A1. I wish to
point out that Mr Steenkamp
elected to refer to the paginated pages of the bundle with the title
“
Expert
notices vol 1”
whilst
the report admitted as exhibit A1 is contained in the bundle with the
title
“
Expert
notices vol 3”.
For
obvious reasons the paginated pages of the two reports differ and in
order to avoid confusion I shall refer to the relevant
paragraph
numbers.
Dr
Oelofse had little medical records of plaintiff available for
perusal. It is apparent that he not only relied on the
available
documentation and plaintiff’s version, but he had
examined her in order to arrive at his conclusions. According
to
him plaintiff entered his consulting rooms, walking with a
pronounced limp, despite an orthopaedic shoe and the assistance of a
walking frame. His version was confirmed when plaintiff had
great difficulty to ambulate about four metres from her seat
to the
witness stand.
[13]
Dr Oelofse described three separate injuries which he discussed
separately in paragraphs 7, 8 and 9 of the
report,
i.e
.
to the right upper leg and knee, the right lower leg and ankle and
the left knee and lower leg. The following extracts from his
report
are quoted
verbatim:
“
7.
RIGHT
UPPER LEG AND KNEE INJURY
:
7.3 Current Symptoms and
Complaints:
The patient complains of
pain in her thigh.
She describes it as a
nagging, daily pain.
The patient states that
she experiences pain in her knee.
She struggles to bend or
straighten her knee.
According to the patient,
she cannot kneel or go down on her haunches.
She states that she is
unable to climb stairs.
The patient states that
even with the Orthotic shoe, she struggles to walk due to stiffness
in her knee.
8.
RIGHT
LOWER LEG AND ANKLE INJURY
:
8.3 Current Symptoms and
Complaints:
The
patient states that she experiences occasional pain in her right
lower leg and ankle.
She states that the pain
is aggravated by walking or standing for extended periods of time.
She sometimes experiences
cramps in her calf after walking.
According to the patient,
her leg gets tired easily.
9.
LEFT
KNEE AND LOWER LEG INJURY
:
9.3 Current Symptoms and
Complaints:
The patient states that
she experiences pain in her knee every day.
She describes it as a
stabbing pain and rates it as 8/10 on the pain scale.
According to the patient,
the pain is aggravated by any form of physical activity.
She cannot sit or stand
for extended periods of time.
She cannot walk without
the assistance of a walking frame.
The patient states that
she struggles to bend or straighten her knee.
She has to elevate her
leg to alleviate swelling of her knee.
According to the patient,
she is unable to function independently and needs help with most of
her tasks.”
The reports deals in
paragraphs 7.4 – 7.8, 8.4 – 8.8 and 9.4 - 9.8 with the
doctor’s examination of the plaintiff
in respect of the three
different injuries, the radiological examination and his diagnosis.
I quote:
“
RIGHT UPPER LEG
AND KNEE INJURY
7.4
Examination
:
Scarring noted over the
knee.
Visible shortening of the
right leg.
Difficult to determine
any form of atrophy of the quadriceps muscles due to obesity.
Leg length discrepancy of
approximately 6 (six) cm (right leg shorter).
Pain on palpation over
the fracture site.
No pain on palpation over
the hip joint.
Pain on palpation over
the medial and lateral patella-femoral joint.
Zohlen sign negative.
Pain on palpation over
the medial and lateral knee joint.
No pain on palpation over
the lateral knee joint.
Medial and lateral
McMurray signs positive.
Movements of the hip:
Internal rotation right
35° left 5°
External rotation right
15° left 50°
Movements of the knee
restricted and painful in the extremes.
7.7
Radiological
Examination
:
See attached report from
Burger Radiologists dated 13 April 2017.
·
Deformity
of the right distal femur with severe shortening, overlapping and
severe posterior angulation, with a varus angulation
of 20°.
·
Advanced
osteo-arthritic changes in the knee joint and patella-femoral joint
with joint space narrowing, sclerosis and osteophytosis.
7.8
Diagnosis
:
·
Mal united
femur shaft fracture with:
1)
Painful
fracture site
2)
Severe leg
length discrepancy of more than 6cm
3)
Severe
varus malunion of 20°
4)
Advanced
post-traumatic osteo-arthritis of the knee joint.
RIGHT
LOWER LEG AND ANKLE INJURY
:
8.4
Examination
:
Visible scarring noted
over the lower leg and ankle.
Visible atrophy of the
calf muscles.
Minimal swelling noted.
Pain on palpation over
the medial and anterior ankle joint.
Ligaments are stable.
Movements are normal, but
painful in the extremes.
8.8
Diagnosis
:
United bimalleolar
fractures with:
i.
Chronic
pain
ii.
Post-traumatic
osteo-arthritis of the ankle joint.
LEFT
KNEE & LOWER LEG INJURY
:
9.4
Examination
:
Multiple visible healed
scars over the knee and lower leg.
No visible deformity or
atrophy.
It is painful on
palpation over the medial and lateral patella-femoral joint.
It is painful on
palpation over the medial and lateral knee joint.
Medial and lateral
McMurray signs difficult to determine due to pain.
Pseudo-laxity of the
lateral-collateral ligament.
Movements are normal, but
painful in the extremes.
9.7
Radiological
examination
:
See attached report from
Burger Radiologists dated 13 April 2017.
·
Advanced
osteo-arthritic changes in the knee and patella-femoral joint.
·
Cortical
remodulation with deformity of the lateral tibial plateau due to old
healed fracture.
·
Depression
of the lateral tibial plateau with a notch, with alteration in the
articular contour.
9.8
Diagnosis
:
Depressed malunited
lateral plateau fracture with:
1)
Chronic
pain
2)
Advances
post-traumatic osteo-arthritis of the knee.
”
[14]
Dr Oelofse stated the following in respect of plaintiff’s
employability:
“
She will require
multiple surgeries for her injuries in future.
It is my opinion that her
productivity will not improve regardless of treatment and successful
surgeries.
Her productivity will
decrease as her symptoms increase and her pathology deteriorates.
I cannot see that she
will be able to return to the same level of employment.
It is therefore my
opinion that she should be accommodated in a sedentary/light duty
environment as determined by an Occupational
Therapist, with
immediate effect.
The injuries of this
patient make her a
VERY
UNFAIR COMPETITOR
in
the open labour market.
I defer to the opinions
of an Occupational Therapist and an Industrial Psychologist with
regards to her future productivity, working
ability and employment
options.
”
[15]
Dr Oelofse is of the opinion that plaintiff will have to undergo knee
replacements in respect of both knees
as well as an ankle
arthrodesis. He concluded in his report that plaintiff’s
injuries resulted in a Whole Person Impairment
(WPI) of more than 30%
and if accommodated in a sedentary, non-manual labour type
environment as determined by an Occupational
Therapist, she will be
able to work to the age of 55 years, but if not so accommodated, she
will not be able to work again.
Consequently, in his opinion
“…
this patient will most
probably never work again.”
As
mentioned, the doctor was not cross-examined.
VI
The
admitted evidence contained in the joint minutes
[16]
The following joint minutes were handed in by agreement:
(a) between
Drs Oelofse and HL Moloto as exhibit A, which Dr Oelofse confirmed
during his testimony;
an aspect to be noted is that Dr Oelofse agreed
with Dr Moloto that plaintiff’s injuries did not result in a
30% WPI as stated
in his report, although the experts agreed that the
plaintiff qualified for compensation in accordance with the narrative
test;
(b)
between the Occupational Therapists, Mrs Marli Grobler and Mrs
Success Moagi as exhibit B and
(c)
between the Industrial Psychologists, Mesdames K Kotzé and M
Kheswa as exhibit C.
[17]
Save for the difference of opinion mentioned
supra
, the joint
report of the orthopaedic surgeons, exhibit A, is in line with the
evidence of Dr Oelofse.
[18]
The Occupational Therapists agreed as follows in exhibit B and I
quote from the second paragraph 2.2 to
2.3.1:
“
2.2
Considering our evaluation findings, we agree that the consulted
injured female lacks the physical residual capacity,
agility and
tolerance to meet the mobility i.e. walking, standing, dynamic
postural – and load handling demands of work categorised
as
light, medium, heavy and very heavy.
2.2.1 The
plaintiff in her post-accident injured state therefore lacks the
psysical capacity to meet the physical requirements
of her
pre-accident job of Hawker, with medium demands including extensive
standing and walking.
2.2.1.1 Even
with the recommended medical intervention and intensive
rehabilitation, we do not expect that the plaintiff will ever return
to her pre-accident occupational duties.
2.3
Although the plaintiff retains the physical ability to tend to seated
tasks, we expect that the plaintiff
will have difficulty working from
a seated position with lower limb involvement i.e.
sitting while
moving her ankle(s) and knee(s) in the operation of a foot lever
as is required while operating a sewing machine because of the
multi-joint degenerative changes, also excluding her from working
as
a factory seamstress as engaged in pre-accident.
2.3.1 Finding
an office job in with only sedentary demands with a grade 9 level of
education and no work experience
in this regard is highly unlikely,
leaving the plaintiff unemployed with he expected poor prognosis.
”
[19]
The Industrial Psychologists agreed as follows in paragraphs 14 –
18 of exhibit C:
“
14. We
note Ms Litseo’s post-accident work history. Following
the accident, she was unable to resume her
pre-accident work role and
remains unemployed, to date.
15. We
note expert opinion regarding the impact of the accident on Ms
Litseo’s work capacity and reference
is given to their reports
in this regard.
16. We
therefore agree that Ms Litseo’s future career prospects and
associated likely earnings have been
nullified by the sequelae of the
injuries sustained in the accident. A total loss of earnings
had occurred.
17. We
agree that for purposes of quantification of the claim, her
pre-accident likely earnings should be used
as a baseline.
18. We
acknowledge that contingency deductions, if applicable, are the
prerogative of the Court and/or a matter
of negotiation between the
legal parties.
”
VII
The claim for past and future loss of income
[20]
Mr Johan Sauer, the actuary’s report was handed in by agreement
as exhibit D. He provided two
scenario’s and based his
calculations on the joint minutes of the two Industrial
Psychologists, exhibit C. The first
calculation is based on the
version of plaintiff’s expert, Mrs Kotzé, and the second
on the RAF’s expert, Mrs
Kheswa. In the first scenario
pre-morbid earnings of R70 093.00
per annum
which equals
R82 000.00
per annum
in current monetary terms were used
to calculate the loss. In the second scenario pre-morbid
earnings of R34 800.00
per annum
(R2 900.00 per
month) as at the date of the injuries were used. I have often
pointed out in the past when dealing with
the evidence of experts,
that if their assumptions are proved to be wrong, their expert
conclusions become either meaningless,
or subject to severe
criticism. I shall endeavour to adjudicate the dispute to the
best of my ability based on the accepted
evidence.
[21]
The two Industrial Psychologists were not
ad idem
as to what
plaintiff’s pre-morbid income was. I refer to paragraphs
5, 9, 11 and 12 which I have not quoted. According
to
plaintiff’s expert, plaintiff alleged to her, without
validation, that she made a profit of about R 7000.00 per month.
It was not established whether this was gross or nett profit.
The expert submitted that plaintiff could have earned income
associated with the earnings of informal traders and spaza shop
owners on the upper quartile (R82 000.00
per annum
) based
on the Quantum Yearbook, 2019. The information provided to
RAF’s expert is earnings of between R2 400.00
and
R3 400.00 per month. This is in line with plaintiff’s
initial version and also as stated to her own Occupational
Therapist. Mrs Kheswa stated that it is difficult to postulate
an earnings structure / career earnings for informally employed
people because of several external and internal factors quoted and
relied upon. I am in agreement with her viewpoint.
If
plaintiff did not reach the upper quartile of earnings for informal
traders at her age, it would be difficult to reach it at
a later
stage. The socio-economic circumstances in Lesotho, a country
with a much higher unemployment rate than South Africa,
and in
particular the town, Pheku where plaintiff lives, have not been
considered. I am not prepared to accept that the figures
contained in the Quantum Yearbook can be used as a proper guide
in
casu
.
[22] I
reiterate that plaintiff presented different versions of her
pre-morbid income to the experts and even
in court during her
testimony as alluded to
supra
.
[23] Mr
Steenkamp submitted that plaintiff should be regarded as a credible
witness. Consequently, so he submitted,
the figures relied upon
by her Industrial Psychologist, Mrs Kotzé, on which the
actuary made his calculations in the first
scenario shall be accepted
for purposes of awarding an amount in respect of loss of income.
The actuary deducted a 10% contingency
in respect of future loss of
income. Mr Steenkamp could not present any persuasive argument
why the normal figure of 15%
should not have been used. Mr
Nkhahle invited me to find that plaintiff’s pre-morbid income
was R2 900.00 per
month and that the loss should be calculated
based on that,
i.e
that Mr Sauer’s second scenario be
accepted.
[24] I
am not prepared to be as liberal as assumed by the actuary in his
first scenario and submitted by Mr Steenkamp.
In my view the
calculation in the second scenario is more in line with the loss of
income suffered by plaintiff, even bearing in
mind the uncertainty
with which the court is confronted as stated
supra
. I
shall finalise my comments in this regard when I make my conclusions
infra
.
VIII
General damages
[25]
In
considering the amount to be awarded for general damages it is
acceptable to have regard to awards issued in comparative cases,
although it is immediately recognized that it is hardly possible to
find a case or cases that are on all fours with a particular
set of
facts. Ultimately, in determining general damages a broad
discretion is exercised by the court based on what it considers
fair
and adequate compensation. The nature, severity and permanency
of the injuries sustained, together with pain and suffering,
disfigurement, permanent disability and the effect thereof on the
person’s lifestyle are aspects to be considered.
Although
I refer to several authorities
infra
,
it is apparent that there is a dearth of recent judgments dealing
with similar injuries.
[26] Mr
Steenkamp submitted that an amount of R800 000.00 should be
awarded. He referred me to several judgments,
i
nter alia
Smit v Padongelukkefonds
, Corbett and Honey,
Quantum of
Damages (“QOD”)
, vol V at E3-11 and
Mgudlwa v Road
Accident Fund,
QOD, vol VI at E3-1. In
Smit
R320 000.00 was awarded to a 24 year old pregnant person who
suffered fractures to her left femur (compromising the knee),
her
right femur, pelvis, left arm and left ankle. Internal
fixations in both femurs and left arm were conducted. She
also
ambulated on a wheel chair initially and thereafter on crutches.
She had to learn to walk again, and would be walking
permanently with
a limp. Future orthopedic surgery, including total knee
replacement and removal of internal equipment from
both her femurs
and arm, was foreshadowed. The present day value of the award
is R752 000.00. In my view the injuries
suffered by this
plaintiff, a much younger person in full bloom of his youth, are a
bit more severe as that suffered by the plaintiff
in casu
.
[27] In
Mgudlwa R300 000.00 was awarded to a 34 year old plaintiff which
is equal to a present day value of R482 000.00.
That
plaintiff suffered from fractures to the femur and tibia causing the
left leg to be 5 cm shorter than the other leg due to
deformity of
the proximal end of the femur. Surgery in the form of a total
knee replacement and realignment of the femur
was anticipated.
The severity of this plaintiff’s injuries is far less than that
of the plaintiff
in casu.
[28]
I considered further judgments. In
Ncama
v RAF
2015 (7E3) QOD 7 (ECP) Eksteen, J
awarded R500 000.00 to a female cleaner in November 2014.
The present day value of
the award is R650 000.00. The
injuries are dissimilar to those
in
casu.
The plaintiff sustained a
fracture of her right femur causing an open reduction and internal
fixation to be performed whereafter
she acquired crutches to
ambulate. She also sustained a skull fracture, a neck injury
and soft tissue injuries to her pelvic
ring and sacro-illiac joints.
It was predicted there was a 30% chance that a fusion at C5/6 will be
required. Clearly,
this plaintiff sustained further injuries to
her pelvis, neck and head, but the extent of her lower limb injuries
is much less
severe than that of the plaintiff
in
casu.
[29]
In
Abrahams v RAF
2014 (J2-1) QOD 7 (ECP) Eksteen, J awarded
R500 000.00 to a 41 year old spray painter. The present
day value of the
award dated 29 May 2012 is R727 000.00.
Although the judgment is found in segment J, it is apparent that the
plaintiff
did not really suffer multiple injuries. The court
found that the head injury complained of was really minimal and no
cognisance
was taken thereof in considering the amount to be awarded
for general damages. In that case the plaintiff sustained a
badly
comminuted fracture of the right proximal femur as well as
fractures of the right distal fibula, patella and medial malleolus.
Open reductions were performed on all three areas with internal
fixation. The lower right leg was shortened and plaintiff
had
to wear an assistive device. The injuries in this case, as in
the case of
Smit supra
, are not too dissimilar to that of the
plaintiff
in casu
and will be duly considered in adjudicating
the plaintiff’s claim.
[30] In
Ndaba
v RAF
2011 (6E3) QOD 14 (ECB) R300 000.00 was awarded to a female
informal hawker who was 42 years old at the time of the injury.
This is equal to a present day value of R456 900.00. This
plaintiff sustained multiple orthopaedic injuries including
a pelvic
fracture, and fractures to the right femur and tibia as well as a
left knee injury. Open reductions and fixation
were performed
on the hip joint, femur and tibia. Injuries to her shoulder and
hip might require hip and shoulder replacement
over time. The
plaintiff was bound to have a knee replacement in future due to
degenerative changes. The plaintiff
also suffered a ruptured
bladder. The court held that she could no longer trade as a
hawker. Although the injuries
differ from those
in
casu,
the
judgment cannot be excluded as a yardstick.
[31]
In
RAF v
Marunga
2003 (5) SA 165
(SCA) the Supreme Court of Appeal reduced the award
made by the trial court in 2001 for general damages to R175 000.00.
The present day value is R492 275.00. The plaintiff
was 19 years old when he was injured. He sustained a
fractured
femur, soft tissue injuries and bruises. An open reduction and
fixation were performed on the femur and he initially
spent five
months in hospital recuperating. Thereafter he ambulated with
clutches. He was readmitted four years later
for removal of the
plate and screws when it was discovered that there was a mal-union of
the femur. His left leg was 3,5
cm shorter than the right leg.
Corrective surgery was required although the left leg would never
revert to its pre-collision
length. The SCA held in paragraph
[29] that the plaintiff spent his life in and out of hospitals for
several years
“…
at
a time when he ought to have been in the full bloom of youth.”
Obviously, these injuries
are dissimilar to those
in
casu,
but
the judgment serves as a good guideline.
[32]
Mr Nkhahle did not refer the court to any authorities, but submitted
that the award should be between R400 000.00
and R550 000.00.
As indicated
infra
,
he eventually made an open tender in excess of these amounts.
IX
Conclusions
[33]
In concluding his oral submissions Mr Nkhahle made an open tender,
duly instructed by the RAF’s attorney,
in respect of loss of
income and general damages. In terms hereof the RAF offered
R563 942.61 and R600 000.00 in
respect of loss of income
and general damages respectively.
[34] I am not
certain how the RAF arrived at the first amount, but it appears as if
it applied a 17.5% contingency on
future loss as calculated in Mr
Sauer’s scenario two. Insofar as the second scenario
appears to be a fair calculation
of the loss of income, I am not
convinced that a contingency percentage higher or less than the
customary 15% should be applied.
In my view the plaintiff
suffered loss of income in the amount of R577 812.00, calculated
as follows:
The total future loss of
earnings
calculated in scenario
two
R 539 883.00
Less
15% thereof
R
80 982.00
Future loss of
earnings
R 458 901.00
Add past loss of
earnings
R 118 911.00
Total loss of earnings
R 577 812.00
[35]
Having considered all factors mentioned
supra
, and also in
particular the
Smit
and
Abrahams
judgments, I am
satisfied that plaintiff shall be awarded R700 000.00 in respect
of general damages. This is less than
awarded in these
judgments, but I would rather err on the conservative side than being
over-generous to plaintiff to the detriment
of the RAF’s purse.
I believe that the compensation is fair and adequate.
[36] The
total amount to be awarded for loss of earnings and general damages
is R1 277 812.00.
X
Orders
[37]
Consequently the following orders are made:
1.
The defendant shall pay to plaintiff the sum of
R1 277 812.00
,
(one million two hundred and seventy seven thousand eight hundred and
twelve Rand);
1.1 The
above amount shall be paid into the plaintiff’s attorney’s
trust account with the following
details:
ACCOUNT HOLDER
: VZLR INC
BRANCH
:
ABSA BUSINESS BANK HILLCREST
BRANCH CODE
: 632005
TYPE OF ACCOUNT :
TRUST ACCOUNT
ACCOUNT NUMBER :
[….]
1.2 In
the event of default on the above payment, interest shall accrue on
such outstanding amount at 10.25%
per annum
(the
mora
rate of 3.5% above the repo rate on the date on this order, as per
the
Prescribed Rate of Interest Act, 55 of 1975
, as amended),
calculated from due date as per the
Road Accident Fund Act until
the
date of payment;
2.
Defendant shall pay the plaintiff’s taxed or agreed party and
party costs into the
above mentioned account for the instructing and
correspondent attorneys, which costs shall include, but not be
limited to the following:
2.1 The
fees of senior junior counsel;
2.2 The
costs of obtaining all expert medico-legal, actuarial, and any other
reports of an expert nature which
were furnished to the defendant
and/or it’s experts;
2.3 The
costs of obtaining documentation / evidence, scans, considered by the
experts(s) to finalise their reports;
2.4 The
reasonable taxable qualifying, preparation, reservation and
attendance fees of all experts, including
the costs of consultation
fees with the legal teams, if any;
2.5 The
reasonable travelling and accommodation costs, if any, incurred in
transporting the plaintiff to all medico-legal
appointments;
2.6 The
reasonable costs for an interpreter’s attendance at court and
at the medico-legal appointments for
translation of information, if
any;
2.7 The
above-mentioned payment with regard to costs shall be subject to the
following conditions:
2.7.1 The plaintiff
shall, in the event that costs are not agreed, serve the notice of
taxation on the defendant’s attorney
of record; and
2.7.2 The plaintiff shall
allow the defendant 14 (fourteen) calendar days to make payment of
the taxed costs;
2.7.3 In the event of
default on the above payment, interest shall accrue on such
outstanding amount at the prescribed
mora
rate on the date of
taxation / settlement of the bill of costs, as per the
Prescribed
Rate of Interest Act, 55 of 1975
, as amended calculated from due date
until the date of payment.
J P DAFFUE, J
On
behalf of plaintiff
: Adv MDJ Steenkamp
Instructed
by
: Du Plooy Attorneys
BLOEMFONTEIN
On
behalf of defendant :
Adv J Nkhahle
Instructed
by
: Maduba Attorneys
BLOEMFONTEIN