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[2017] ZALMPPHC 12
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M.J v Road Accident Fund (2391/2015) [2017] ZALMPPHC 12 (26 June 2017)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 2391/2015
Not
reportable
Not
of interest to other judges
Revised.
26/6/2017
In
the matter between:
M
J
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MOKGOHLOA
DJP
1.
The plaintiff who was 25 years old at the time, sustained severe
bodily injuries in a motor vehicle accident which occurred in
Matlala
Road, Polokwane on 1 March 2014. The accident occurred when the
driver of the vehicle in which the plaintiff was a passenger,
lost
control of the vehicle, hit the bridge and overturned. As a result of
the injuries sustained in the collision, the plaintiff
suffered
damages and instituted action against the defendant for the recovery
of such damages.
2.
At the commencement of the trial, I was informed that the defendant
conceded the merits and acknowledged that it was liable to
compensate
the plaintiff for such damages as the plaintiff was able to establish
that she has suffered in consequence of the injuries
which she
sustained in the collision. In addition, the defendant furnished the
plaintiff with an undertaking in terms of s17 (4)
(a) of the Road
Accident Fund Act
[1]
in respect of the plaintiff’s future medical treatment and the
costs of the appointment of a carer. In the circumstances,
what
remains to be determined is the plaintiff’s claim for loss of
earning capacity, both past and future, and general damages.
3.
The plaintiff alleges that he has suffered injuries to her face and
left ankle as a result of the accident. She complained about:
Ø pain on the left ankle;
Ø intermittent swelling
of the ankle;
Ø she cannot run;
Ø she is not coping at
the gym; and
Ø she experiences
discomfort with chewing.
4.
The defendant has admitted that the plaintiff sustained all these
injuries and the sequelae too.
5.
I was handed a bundle of medico-legal reports and I was advised that
all these reports were admitted by the defendant. The admission,
I
was advised, entails an admission of the correctness of the
conclusion arrived at and the opinions expressed in these reports.
6.
These reports set out the nature, extent and degree of severety of
the various injuries and their sequelae. In this regard I
was
referred to the reports of Dr Ramushu, an orthopaedic surgeon; Dr I
Malipfani, a radiologist; Dr Mazwi, a neurosurgeon; Mrs
Edzisani
Sodi, a clinical psychologist; Dr Mabongo, a maxilla – facial
and dental surgeon, Ms Patronella Radzuma, an occupational
therapist;
Prof M Tshifularo, an ear, nose and throat specialist; and Mr Herbert
Smith, an industrial psychologist.
Loss
of earning capacity
7.
It is common cause that the plaintiff passed a Grade 12 and has a
diploma in bookkeeping. At the time of the accident she was
working
as a supervisor in a debt collecting company in Polokwane. When the
company closed down in Polokwane relocating to Gauteng,
the plaintiff
was retrenched. This was due to her continuous sick leave. She was
not favourably considered and was not kept on
as an employee
8.
Dr Malepfani consulted with the plaintiff on 17 July 2015 and
completed the RAF 4 form. He diagnosed her with a right ankle soft
tissue injury and facial disfigurement. He noted that her right ankle
was still swollen and had a mildly reduced range of movement.
Dr
Malepfani calculated the plaintiff’s WPI at 8%. On 20 February
2017 the orthopaedic surgeon calculated her combined WPI
at 11% and
noted that the plaintiff qualifies for general damages.
9.
On 17 February 2017 the plaintiff consulted with Dr Mazwai a
neurosurgeon who noted the plaintiff’s injuries as: head
injury, left forehead laceration, mandible fracture, right ankle
fracture, upper hip laceration and left facial abrasions. Noting
these injuries, Dr Mazwai concluded that the plaintiff has severe
disturbances in employability; significant permanent residual
memory
disturbances; and severe difficulty with concentration.
10.
On 20 February 2017 the plaintiff consulted with an occupational
therapist Ms P Radzuma who after noting her injuries and assessing
her concluded that:
“
She presented with poor
physical endurance with physical repetitive work that is within
sheltered employment throughout the evaluation.
Her performance in
standardized physical assessments falls within sheltered employment
and open labour market rate and she reaches
this with reasonable
accommodation in the form of regular rest breaks and this makes her
less competitive in the open labour market
rate.
She is suited for sedentary work
and light work with reasonable accommodation. Her injury was in
2014/03/01, she has reached the
MMI and it is opinion that her
condition is likely to improve for her to reach a competitive score
in various physical assessments,
her condition is likely to worsen as
she ages”.
11.
According to Ms Radzuma, even though the plaintiff is qualified as a
bookkeeper, she was not able to secure related employment
as a
manager after the accident. This was due to her having difficulty
meeting the demands of her work which was sedentary with
some
elements of light work.
12.
On 2 March 2017 the plaintiff consulted with an industrial
psychologist Mr H Smith. After referring to other expert reports,
Mr
Smith concluded that the plaintiff’s likelihood to find
alternative employment which will suit her compromised condition
is
nil. He further concluded that the plaintiff’s likelihood to
find employment in the open labour market in her condition
is equally
nil. According to Mr Smith, the plaintiff is considered to be
unemployable.
13.
Mr Smith referred to the plaintiff’s work history and in
particular that she was retrenched on 30 September 2016. He therefore
stated that the plaintiff suffered loss of earnings from 1 October
2016 until her retirement age of 65.
14.
Based on Mr Smith’s conclusions, the actuary calculated the
plaintiff’s loss of earnings to R1 574 500-00
without
contingency deduction
Contingencies
15.
As stated earlier, the defendant does not dispute the plaintiff’s
injuries and sequelae thereof. However, Mr Maphelela,
for the
defendant, argued that there is a possibility that the plaintiff can
do administrative work. He therefore submitted that
a higher
contingencies of 40% on future loss of earning should be applied.
16.
Matters which cannot otherwise be provided for or cannot be
calculated exactly, but which may impact upon the damages claimed,
are considered to be contingencies, and are usually provided for by
deducting a stated percentage of the amount or specific claim
[2]
.
Contingencies include any possible relevant future event which might
cause damage or part thereof or which may otherwise influence
the
extent of the plaintiff’s damage.
17.
Colman J provided a useful exposition of the approach to be adopted
by the court in Burger v Union National South British Insurance
Co
[3]
as follows:
“
A related aspect of the
technique of assessing damages in this one; it is recognised as
proper in an appropriate case, to have regard
to relevant events
which may occur, or relevant conditions which may arise in the
future. Even when it cannot be said to have been
proved, on a
preponderance of probability, that they will occur or arise, justice
may require that what is called a contingency
allowance be made for a
possibility of that kind. If, for example, there is acceptable
evidence that there is a 30 per cent chance
that an injury to a leg
will lead to an amputation, that possibility is not ignored because
30 per cent is less that 50 per cent
and there is therefore no proved
preponderance of probability that there will be an amputation. The
contingency is allowed for
by including in the damages a figure
representing a percentage of that which would have been included if
amputation had been a
certainty. That is not a very
satisfactory
way of dealing with such difficulties, but no better way exists under
our procedure.”
18.
But the difficulty with this approach was appreciated by Margo J in
Goodall v President Insurance Cc Ltd
[4]
when he stated:
“
In the assessment of a
proper allowance for contingencies, arbitrary considerations must
inevitably play a part, for the art or
science of foretelling the
future, so confidently practised by ancient prophets and soothsayers,
and by modern authors of a certain
type of almanac, is not numbered
among the qualifications for judicial office.”
19.
Ms Radzuma, the occupational therapist reported that:
“
Her work as a manager as a
dept collection company was sedentary work which is productivity
based and she struggled to meet the
demands of her work post injury
and when the company was downsizing and closing smaller branches,
effective employees were absorbed
and the rest retrenched.
She was a manager and yet she was
not absorbed when the company downsized and this correlates with her
report that she was not meeting
the demands of her work post injury.
Her overall performance falls
within open labour market rate and her performance in the individual
tests falls within sheltered
employment and protected employment
rate. Her performance indicates that she is suited for purely
sedentary work with limited physical
demands.”
20.
The industrial psychologist reported that from his perspective, the
plaintiff is considered unemployable.
21.
Weighing up all the evidence in the expert reports, I am satisfied
that the plaintiff’s earning capacity in an injured
stage has
indeed been affected. In my view an appropriate and reasonable
contingency of 25% should be applied on plaintiff’s
future loss
of earnings and 5% on past loss of earnings.
General
damages
22.
The plaintiff was taken to hospital with the following injuries: head
injury, left forehead laceration, upper lip laceration,
left facial
abrasions, right ankle fracture, and mandible fracture. According to
the records, she had a brief loss of consciousness
and amnesia and
her GCS was 15/15 in keeping with a mild head injury. A plaster of
paris was applied on her right ankle and lacerations
were sutured.
She was discharged the next day.
23.
She has a left forehead disfiguring scar, a significant permanent
residual memory disturbances and has difficulty with concentration.
She still experiences pains on her jaw and right ankle, and suffers
from chronic headaches.
24.
Mr Mashabela, for the plaintiff, submitted that an award of
R700 000-00 represents a fair quantification of the plaintiff’s
claim for general damages. He submitted that an award of this amount
would be in keeping with awards made in similar cases where
the
plaintiffs sustained similar injuries to those sustained by the
plaintiff herein. On the other hand, Mr Maphelela for the defendant,
submitted that an award of R400 000-00 would be appropriate. I
was referred to a number of decide cases. I found the following
comparable cases more illuminating and helpful in my assessment of
the plaintiff’s general damages.
25.
In Seme v Road Accident Fund
[5]
a 36 year old male was awarded R1 million in general damages (R1, 642
million in 2017). He sustained severe head and brain injury,
fractures of the maxilla and multiple loss of teeth, bilateral
pulmonary contusion, fractures of the right tibia and fibula,
compound
fracture of the left knee, multiple scalp and facial
lacerations, dislocation of the right elbow as well as the lumber
spine and
pelvis. Plaintiff was found to be permanently disabled and
wheelchair bound.
26.
In Abrahams v Road Accident Fund
[6]
,
a 41 year old male suffered a badly communicated fracture of the
right proximal femur; fracture of the right distal fibula and
patella, fracture of the right medial melleous, severe soft tissue
injuries to the left hand; secretion in the chest and a mild
concussive traumatic head injury; shortening of the right lower limb
with need to wear an assistive device. He was awarded general
damages
of R663 000-00 (in 2017 terms).
27.
The courts have repeatedly stated that the exercise of assessing and
awarding damages for fatal and bodily injuries is less
exact and in
arbitrio iudicis
[7]
.
As Watermeyer JA (as he then was) aptly put it in Sandler v Wholesale
Coal Supplies Ltd
[8]
:
“
In considering that question
it must be recognised that though the law attempts to repair the
wrong done to a sufferer who has received
personal injuries in an
accident by compensating him in money, yet there are no scales by
which pain and suffering can be measured,
and there is no
relationship between pain and money which makes it possible to
express the one in terms of the other with any approach
to certainty.
The amount to be awarded as compensation can only be determined by
the broadest general considerations and the figure
arrived at must
necessarily be uncertain, depending upon the judge’s view of
what is fair in all the circumstances of the
case”.
28.
That still remains the legal position. In determining a fair
compensation, the courts have regard to a number of factors which,
as
with awards in comparable cases, inflation and changes in the value
of money are problems arising from collateral benefit. It
is clear
from the abovementioned cases that the plaintiffs suffered serious
injuries to varying degrees. The sequelae and aftermaths
of their
injuries also differ in a marked degree. Of equal importance is the
difference in their age and gender. Be that as it
may, all of them
suffered disability, loss of amenities of life, enduring paid and
suffering and discomfort although to varying
degrees. To the extent
that guidance may be derived from comparable cases, I have given
careful consideration to them.
29.
On consideration on all the facts of the present matter and awards
previously made in similar matters I have concluded that
an award in
the amount of R450 000-00 would present a fair compensation.
30.
I therefore find the plaintiff’s proven damages to be:
29.1
Loss
of earnings
R1 187 715.00
28.2
General
damages
R 450.000.00
R1 637.715.00
31.
In the premises, I make the following order:
1. The defendant shall pay the
plaintiff the sum of R1 637 715.00
2. The defendant is ordered to pay the
cost of the suit, including costs of counsel for preparation,
travelling time, accommodation
(if any) and appearance, and the
defendant is also ordered to pay the reasonable taxable preparation,
reservation and experts fees
(if any proof thereof) as well as the
costs of obtaining the reports of the experts.
MOKGOHLOA
DJP
REPRESENTATIONS
1.
For the
Plaintiff : Mr Mashabela
Instructed
by : Mashabela Attorneys Inc
2.
Counsel for
the defendant : Mr Maphelela
Instructed
by : Mathobo, Rambau & Sigogo Attorneys
3.
Date of
hearing : 18 May 2017
4.
Date handed
down : 26 June 2017
[1]
56 of 1996
[2]
De Jongh v Gunter
1975 (4) SA 78
(W) at 80F
[3]
1975 (4) SA 72
(W) at 75 D-F
[4]
1978 (1) SA 389
(W) at 392 H – 393 A
[5]
2008 (5A4) QOD 33 (D)
[6]
204 (7J2) QOD 1 (ECP)
[7]
Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A)
[8]
1941 ad 194 AT 199