About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2018
>>
[2018] ZALMPPHC 33
|
|
Matjila v Road Accident Fund (868/2014) [2018] ZALMPPHC 33 (9 May 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE No. 868/2014
In
the matter between:
In
the matter between:
KOKETSO
MATJILA
: PLAINTIFF
And
THE
ROAD ACCIDENT FUND
: DEFENDANT
JUDGEMENT
SEMENYA
J:
1.
The
plaintiff was a passenger in a motor vehicle with registration
numbers and letters [C...] when it collided with another motor
vehicle on the 13 August 2013. It is common cause that the said
collision took place along Polokwane –Modjadjiskloof road.
This
action is for general damages and loss of income/earning capacity the
plaintiff suffered as a result of injuries sustained
in the
collision. The amount claimed is R1 500 000.00 for general
damages and R1 200 000.00 for loss of earning/earning
capacity.
2.
The parties agreed in a stated case that the issue of future medical
expenses will be settled by way of an undertaking in terms
of
section
17
(4) of the
Road Accident Fund Act 56 of 1996
.
3. The parties
informed me that they will rely on the reports filed as well as the
joint minutes of orthopaedic surgeon Drs H Sithebe
(for the
plaintiff) and A A Aden (for the defendant); occupational therapists
Ms N Sibanyoni (for the plaintiff) and Mr J Masango
(for the
defendant); Industrial Psychologists Mr P Brits (for plaintiff) and
Ms S Vos (for defendant) and actuarial calculations
by Gerald
Jacobson. The plaintiff also relies on the report compiled by Dr
Mazwi who is a neurosurgeon. The defendant did not appoint
its own
neurosurgeon. No oral evidence was led by either of the parties.
4. It is stated in
a court order dated the 25 January 2016 that the defendant shall be
liable for 100% of the plaintiff’s
agreed or proven damages. In
their opening address the parties stated that the main issue is the
head injuries as noted in the
report compiled by Dr Mazwi. The
defendant contends that there is no evidence to support this
conclusion.
5. According to the
entry in the hospital records dated the 13 August 2012 the
plaintiff’s injuries on admission are recorded
as fracture of
the left numerous, left metartasal fracture as well as shoulder
dislocation. It is further recorded that the plaintiff
sustained
multiple facial lacerations. The parties agree on these injuries. A
Glasgow Coma Scale (GCS) of 15/15 was recorded and
the plaintiff was
said to be fully awake and communicating well with no confusion.
6. On the 16 August
2012, the plaintiff singed a form in which he stated that he has
decided to leave the hospital on his own responsibility
and against
the advice of the attending doctor. It is noted in the hospital
records that his own sister failed to convince him
to stay. However,
it would appear from the records that he was readmitted on the 17
August 2012 and was finally discharged on the
23 August 2012.
7. On page 3 of his
report, Dr Mazwi reports that according to hospital records and RAF1
the plaintiff suffered from head injury
with GCS 15/15, left foot
metatarsal fracture, humerous fracture, left shoulder dislocation and
facial abrasions. He goes further
to state that the plaintiff has
significant memory disturbances and severe difficulty with
concentration. According to the doctor,
these are the sings of head
injury.
8.
On page 12, Dr Mazwi records that according to American Academy of
Neurology Grading (AAN), Glasgow Coma Scale and American Congress
of
rehabilitation medicine definitions, a score of 13/15 to 15/15 means
that one has mild head injury or a concussion
9. In support of
its case the plaintiff argued that the bleeding facial abrasions
noted in hospital records upon admission are indicative
of head
injury. It was contended that the court should find, based on this
aspect and Dr Mazwi’s report that the plaintiff
has
discharged his onus of proving, on a balance of probabilities, that
he sustained head injuries.
10. The plaintiff
contended that the conclusion arrived at by Dr Mazwi remains
unchallenged in view of the fact that the defendant
did not appoint
its own neurosurgeon to counter this conclusion.
11. The defendant
on the other hand contended that the fact that it failed to appoint a
neurosurgeon alone is not to be regarded
as an admission of the
conclusion arrived at by the plaintiff’s expert. It was
contended that the plaintiff is still expected
to discharge the onus
that rests on him to prove, on a balance of probabilities, based on
the available evidence, that he sustained
the head injuries as noted
by Dr Mazwi.
12. The defendant
further argued that the court cannot, on the strength of the facial
abrasions as they appear in the hospital records,
conclude that they
translate into head injuries. It was contended that such head
injuries do not appear anywhere in RAF 4 form
as stated in Dr
Mazwi’s report or on X-rays filed on behalf of both parties.
13.
I have
thoroughly perused the hospital report from the date of admission to
the date on which the plaintiff discharged himself.
I am unable,
contrary to the contents of Dr Mazwi’s report, to find where it
is recorded that the plaintiff sustained head
injury, neither is same
reported on RAF1 form. The defendant is therefore correct in this
regard. I therefore find that the doctor’s
statement in this
regard has no factual basis.
14. It is stated in
the expert reports filed by the plaintiff that the plaintiff was
admitted in hospital for three months contrary
to the entries in the
hospital records. The plaintiff discharged himself only three days
after admission, was readmitted again
but discharged few days
thereafter. I fail to find any reason why the plaintiff would lie
about this fact, safe to say that he
wanted his injuries to appear
more serious.
15. Furthermore, Dr
Mazwi stated that a GCS score of 13/15 and 15/15 symbolizes mild head
injuries. It is unfortunate that Dr Mazwi
did not attach a copy of
the AAN report for ease of reference. I have however done my own
research and found that the AAN states
that the GCS of 13/15 indeed
shows that a patient suffered mild head injury. However, I could not
find anywhere where it is stated
that 15/15 also indicates head
injury. In any event, I agree with Mr Brits, one of the industrial
psychologists who examined the
plaintiff, that mild head injury does
not necessarily mean that the patient has suffered a brain injury.
16. In a book
titled Pocket Essentials of CLINICAL MEDICINE fourth edition,
paragraph 721 the authors explain that GCS is a simple
grading used
to assess the level of consciousness. According to the authors, a GCS
of 15/15 simply means that the patient is fully
conscious, orientated
and responds well to questions. This fact lends support to the
entries in the hospital records upon the plaintiff’s
admission.
17. The onus of
proving that the plaintiff sustained head injuries rests with the
plaintiff. With regard to this onus,
Davis
AJA in Pillay v Krishner
1946 AD 946
stated that
“
In
my opinion, the only correct use of the word onus is that which I
believe to be its true original sense, namely the duty which
is cast
on a particular litigant, in order to be successful, of finally
satisfying the court, that he is entitled to succeed on
his claim, or
defence, as the case may be, and not in the sense merely of his duty
to adduce evidence to combat a prima facie case
made by his opponent.
18.
I
find that Dr Mazwi’s finding that the plaintiff suffered from
mild head injury has no factual basis. On this basis, I find
that the
plaintiff failed to adduce evidence to satisfy me that he is entitled
to succeed on his claim that he sustained mild head
injury. I however
accept that the plaintiff succeeded in proving that he sustained the
following injuries: left foot metatarsal
fracture, left humerous
fracture, left shoulder dislocation, multiple facial and foot
abrasions.
19. On the issue of
general damages, the radiologist appointed by the defendant opines
that the plaintiff’s daily living,
work capacity and labour
capacity has been impaired by the accident. Dr Aden reports that the
plaintiff’s overall body capacity
has decreased and his quality
of life has been compromised. The doctor reports that the plaintiff
has suffered severe pain for
three months after the injury and was on
regular analgesics with loss of independence. He did not regain all
pre-accident amenities.
His left arm and shoulder and left foot have
remained symptomatic and they cause limitation of his capacity and
endurance at many
physical activities.
20. Dr Aden
concludes that the plaintiff’s basic activities of life like
reaching above head, lifting and carrying heavy things,
keeping
standing position, walking, running and working are difficult. He
states that the plaintiff has 13% personal impairment.
Based on this
report, I accept that he qualifies for an award of general damages.
21. In
Chetty
v Road Accident Fund 2012 (6J2)QOD 115 (KZN)at [33]
van Zyl J stated the following with regard to an award for general
damages:
“
The
assessment of such damages also needs to strike a balance between the
entitlement of the plaintiff, on the one hand, to adequate
compensation and the entitlement of the defendant, on the other hand,
not to be saddled with a liability which is unreasonable,
or which
unduly favours the plaintiff by reason of sympathy for his plight.
Whilst previous decisions are therefore useful aides
to arriving at a
determination in the case under consideration, their importance
should not be overestimated.”
22.
It
would appear that the amount claimed for general damages was based on
the assumption that the plaintiff has suffered mild head
injury. I
have already ruled that Dr Mazwi’s conclusion is unsupported by
the evidence and have rejected it on that basis.
It is now trite that
when considering general damages, the court has a wide discretion to
award what it considers fair and adequate
compensation to the injured
party.-See
Road
Accident Fund v Marunga
2003 (5) SA 164
(SCA) at 169 E-F.
23. I consider the
fact that the plaintiff is not permanently disabled and has retained
his mobility. I further consider the fact
that he is right handed and
still able to perform light tasks. In the circumstances, I find that
an amount of R900 000.00
would be a fair and adequate
compensation for the plaintiff.
24. With regard to
loss of earning capacity, the two occupational therapists agree that
the plaintiff’s highest level of education
is grade 9 (I note
that he gave different levels of education to different experts).
They also agree that he does not have any
formal or informal skills
training. The therapists also agree that at the time of the accident
the plaintiff was working as a carpenter,
which is presumed to have
medium physical demands, on a part-time basis. According to the
therapists, the injuries rendered plaintiff
unemployed and will not
be able to return to work as a carpenter.
25.
The occupational therapist agree further that the plaintiff’s
limited educational skills restricts him to manual job and
depends on
his physical strength to compete in the open labour market. His level
of education may therefore probably affect his
ability to acquire
sedentary type of work. I have no reason to differ with the
occupational therapists on these points.
26.
The Industrial Psychologists opine that the plaintiff’s
employment prospects prior the accident were limited by his
educational
qualifications and vocational exposure. These experts
note that persons of the plaintiff’s level of education are
employed
for their ability to do work of a physical nature and not
for their academic achievement and cognitive capacity.
27. The
psychologists propose that, but for the accident, the plaintiff’s
career would have been confined to any unskilled
position for which
he was suitably qualified. It is anticipated that the plaintiff’s
income would have ranged between the
median to upper quartile
(R20 600 - R59 000 per annum) of unskilled non-corporate
workers depending on the type of work
performed. The estimated
retirement age is said to be between 60 and 65 years.
28.
The psychologists note that the plaintiff did not return to his
carpentry work after the accident and remained unemployed until
9
February 2015. He secured employment as a cleaner where he was
earning R3200.00 per month. Mr Brits states that more information
is
required as to actual reasons why Survest terminated the plaintiff’s
employment. In the absence of concrete reason from
the plaintiff’s
former employer as to why he left, I am unable to find that the
injuries sustained in the accident are the
result why he left his
work.
29.
Dr Aden and Dr Sethibe (orthopaedic surgeons) agree that the
plaintiff is unemployable post- accident. I agree with this
conclusion
in view of the fact that, as a carpenter or a person whose
employment opportunity is limited to work requiring physical
strength,
the plaintiff would not be in a position to compete fairly
in the labour market, due to the injured foot and shoulder. I will
therefore
disregard Mr Brits’s opinion that the plaintiff is
still employable. I will, on this basis, confine myself to the
actuarial
calculations based on Ms Vos’s opinion.
With regard to the
calculation of loss of income, I find the following statement made
by Nicholson JA in
Southern
Insurance Association Limited v Bailey NO
1984 (1) SA 98
(A)
at 113F – 114E to be of assistance. It was stated that ….While
the results of an actuarial computation may be no
more than “an
informed guess, it has the advantage of an attempt to ascertain the
value of what was lost on a logical basis;
whereas the trial judge’s
“gut feeling” (to use the words of the appellant’s
counsel) as to what is fair
and reasonable is nothing more than a
blind guess.”
31. Gerard Jacobson
Consulting Actuaries calculates the plaintiff’s past loss,
after deductions of contingencies of 5% to
be R697 484. The actuary
calculates future loss, after deduction of 20% contingency at
R621 904. This calculation is based
on the report that the
plaintiff is unemployable, the fact that I have accepted.
32. The
contingencies (hazards of life), being illness that may befall the
plaintiff, early retirement and death as per the actuary
I found by
me to reasonable in the circumstances of the plaintiff in this
matter.
In the result I give judgement for the
plaintiff as follows:
1.
Payment
of the sum of:
1.1
R900 000.00
for general damages;
1.2.
R697 484.00
for future loss of earnings;
1.3.
R621 904.00
for future loss of earnings.
2.
2.2.
The
defendant would not be liable for payment of interest on condition
that payment is made timeously;
2.3.
In
the event of the defendant not making payment timeously, the
defendant will pay interest at the rate of 10% per annum on the
amounts stated in 1.1, 1.2 and 1.3.
3.
In
addition the defendant shall pay the following costs:
3.1.
The
defendant shall pay the plaintiff’s costs of suit on the High
Court party and party scale. Such costs shall include the
fees and
qualifying expenses of all expert witnesses that prepared
medico-legal reports that were referred to during argument;
3.2.
Costs
of travelling costs of the plaintiff to attend the medico-legal
examinations with the defendant’s experts.
3.3.
The
reasonable costs of attending the examinations and obtaining the
medico-legal ,reports and such reports, addendum and any joint
reports;
3.4.
The
costs of preparation of the trial bundle; and
3.5.
The
reasonable costs of the plaintiff’s attorney which shall
include travelling costs, attendance to court, costs of preparation
of pre-trial conferences and formulation of pre-trial minutes and the
costs of actual attendance of pre-trial conferences.
SEMENYA M.V
JUDGE
OF THE HIGH COURT, POLOKWANE; LIMPOPO DIVISION
APPEARANCES
FOR
THE PLAINTIFF : M MOGASHOA
INSTRUCTED
BY :
MAFETSE MOGASHOA ATT
FOR
THE DEFENDANT: NOKO MAIMELA ATT.
INSTRUCTED
BY :
DATE
OF HEARING : 08 MARCH 2018
DATE
OF JUDGEMENT: 09 MAY 2018