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[2017] ZAGPPHC 129
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Ratshikombo v Road Accident Fund (91771/2015) [2017] ZAGPPHC 129 (23 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE
HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Date
of hearing: 7 March 2017
Date
of judgment: 23 March 2017
Case
number: 91771/2015
In
the matter
between:
PH
INASHAKA MISHACK RATSH
IKOMBO
Plaintiff
and
ROAD
ACCIDENT
FUN
D
Defendant
JUDGMENT
BRENNER,
AJ:
1.
In this action for damages for personal injuries, I granted judgment
on 10 March 2017 in terms of the order attached hereto marked
"X".
2.
These are the reasons for the order.
3.
Both merits and quantum were in dispute.
4.
On 4 November 2013, the plaintiff, Phinashaka Mishack Ratshikombo
("Ratshikombo"), (born on [….] 1984), was
involved
in a motor vehicle collision along the N1 highway near the old
Johannesburg off ramp, between a vehicle driven by
him, and an
unidentified truck.
5.
Rathshikombo's claim comprised four components, namely, payment of:
a.
general damages;
b.
past loss of income;
c.
future loss of income;
d.
future medical and hospital expenses by way of a section 17(4)(a)
undertaking.
6.
A pretrial conference was held on 2 March 2017 between the parties
and the minute duly signed on the same date. I t merits mention
that,
in every instance in which the RAF intimated at the pretrial that it
would revert by 3 March 2017, it failed to do so. The
consequences
was that the RAF was deemed to have admitted the admission called for
by Ratshikombo's lawyers.
7.
The following admissions were made by the RAF therein, namely that:
a.
on 4 November 2013 on the N1 North, past the old Johannesburg onramp
(this should read "offramp"),
an accident occurred between
the vehicle driven by Ratshikombo and an unknown truck driven by an
unknown insured driver;
b.
Ratshikombo sustained the injuries, received the treatment, and
suffered the sequelae as stated in the
medicolegal reports
filed by him;
c.
the expertise of the parties' expert witnesses;
d.
the educational history of Ratshikombo as stated in the medicolegal
reports filed by him;
e.
the work history, collateral evidence and income derived from work,
his present income as stated in the report
of his industrial
psychologist, coupled with her qualifications;
f.
the basis of the calculations contained in Ratshikombo's actuarial
report, save for the issue concerning
contingencies;
g.
the factual allegations/findings, opinions and basis/evidence in the
reports of Ratshikombo's experts.
8.
In the final analysis, the RAF agreed to the introduction into
evidence of all of Ratshikombo's expert reports. There were no
joint
minutes of experts, as the RAF did not file any expert reports.
9.
The only witness who testified on the merits was the plaintiff
himself, Thinashaka Meshack Ratshikombo. He was employed at the
time
as a driver, carpenter and installer of wooden flooring.
10.
At about 12h00 on the afternoon of 4 November 2013, he was
travelling in a northerly direction along the N1 highway in
and
Isuzu bakkie owned by his employer, Uniteak Wooden Flooring
("Uniteak"), on his way to deliver goods to Centurion.
The
N1 highway had four lanes on each side of the road, for traffic
proceeding in opposite directions. He was driving at a speed
of
between 90 and 100 kilometres per hour, proceeding straight, in the
far left lane. A large truck, which could have been a "Superlink"
with two or three trailers, suddenly approached from his right
speeding at a fast rate. Its direction
indicated to
him that the truck intended to drive
onto the Old Johannesburg offramp, which Ratshikombo
was
passing on his left at the time. He tried to avoid a
collision by braking. The next thing he could remember
was waking up
in hospital.
11.
In cross-examination, he said he first saw the truck when its last
trailer was near his line of vision because the truck was
speeding so
fast. The truck did not appear to be trying to overtake him. Instead,
it appeared to be veering suddenly in front of
him to take the
offramp to his left. He could take no other evasive action. He could
not say for sure whether his bakkie collided
with the truck.
12.
Counsel for the RAF applied for absolution from the instance at the
close of Ratshikombo's case on the merits. It was argued
that he
should have seen the truck indicating to overtake him and that he did
not keep a proper lookout as a vigilant driver should.
He should have
seen the truck much earlier than when he did, which was when he saw
its last trailer. He should have made use of
his rearview mirrors,
which would have shown him that the truck was overtaking him. The
application was opposed, primarily on the
premise that the RAF's
counsel had misinterpreted Ratshikombo's evidence that the truck
appeared not to be overtaking but rather
to be driving directly
across his path to turn onto the offramp to the left of the N1
highway. This was a case of sudden emergency
and under such
circumstances there was no way of avoiding the collision. The fact
that Ratshikombo could not recall whether a physical
collision
occurred did not derogate from his right to claim under the RAF Act.
13.1
dismissed the application indicating that my reasons would appear in
my judgment in due course. The test for absolution was
enunciated in
Claude
Neon
Lights
(SA)
Ltd
v
Daniel
1
976C4)
SA
403
(A)
at
409G-H:
(my emphasis
included)
"
When absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the evidence
led by the plaintiff establishes what would finally be required to be
established, but whether
there
is
evidence
upon
which
a
Court,
applying
its
mind
reasonabl
y
to such
evidence,
could
or
might,
(not
should,
nor
ought
to
), find
for the
plaintiff.
"
14.
Based on the evidence adduced by Ratshikombo, there was evidence upon
which a court, applying its mind
reasonably, could find for the
plaintiff. Ratshikombo had made out a prima facie case which
the RAF was obliged to meet. I will elaborate further on this aspect
when I analyse the merits below.
15.
The RAF closed its case without calling evidence on the merits.
16.
It is trite that an adverse inference may be drawn from the mere
conduct of a vehicle driving in an unanticipated and unexpected
fashion, creating a sudden emergency for the driver of another car,
as occurred in casu.
17.A
vehicle which is driven properly and without negligence does not
normally suddenly and at great speed veer in front of another
vehicle's path of traffic, so as to drive onto an offramp which it
had previously missed.It was established by the evidence that
this
was precisely what the movement of the truck indicated to
Ratshikombo, whose evidence was credible and reliable in all material
respects. His credibility was not seriously challenged. The principle
of res ipsa loquitur finds application. See
Durban
City Council
v
SA Board
Mills Ltd
1
961(31 SA
397 AD.
18.
In the light of the absence of evidence from the RAF, and in the
light of proof of a sudden and unexpected emergency, an inference
of
negligent driving on the part of the driver of the unidentified truck
arises. There was nothing to disturb this inference of
negligence.
The RAF did not discharge the onus of proving contributory negligence
on the part of Ratshikombo. See
RAF v Mehlomakulu
2009(5)
SA
390
(ECO)
at
397-398
and
Van
Staden
v
May
1
940
WLD
1
98 at
201.
19.
The collision occurred solely as a result of the negligent driving of
the driver of the unidentified truck. It is settled law
that an
actual physical collision need not be proved.
20.
Ratshikombo produced the expert reports of Orthopaedic surgeon Dr DA
Birrell, plastic and reconstructive surgeon Dr JPM Pienaar,
neurosurgeon Dr JH Kruger, clinical psychologist N Prinsloo,
occupational therapist M Hales, industrial psychologist JJ Prinsloo
and actuary G Jacobson. No expert reports from the
RAF were produced to controvert
the
veracity of the opinions made and conclusions drawn
in the reports. Moreover, I have taken cognizance
of the admissions
made by the RAF at the pretrial on 2 March 2017.
21.
The following injuries were sustained by Ratshikombo:
a.
A severe traumatic brain injury;
b.
A skull fracture to the frontal bone, with an extradural haemorrhage;
c.
A fracture of the left femur;
d.
A fracture of the left tibia and fibula;
e.
A dislocated left knee;
f.
An extradural haematoma, head abrasions near the parieto occipital
area, a right wrist abrasion.
22.
He underwent a craniotomy of the extradural haemotoma the following
day, and an anterior fossa repair. The next day he had an
internal
fixation of the left femur and tibia. He used crutches for about nine
months. The CT scan reveals extradural bleeding
to the brain.
Future medical treatment includes total knee replacement,
revision knee replacement, arthroplasty and
revision arthroplasty,
physiotherapy and scar revision surgery. He continues to suffer from
headaches, dizziness and fatigue, is
forgetful and finds walking
painful, walking with a limp. He has been subjected to social
rejection and has become socially withdrawn.
23.
He cannot learn new information without some difficulty, is mentally
slower and forgetful. His neurocognitive functioning has
deteriorated
significantly since the accident. He suffers from PTSD. He is at
greater risk of suffering from depression and anxiety
and has a
greater chance of attempting suicide. PTSD correlates with conditions
such as diabetes, obesity, heart problems, respiratory
problems and
sexual dysfunction.
24.
It was Ratshikombo's evidence that he was discharged
from hospital in December 2013 and returned to work in
April/May 2014. He was allocated menial tasks such as
sweeping and cleaning. Uniteak, where
he had
worked since 2010, closed down at the end of
2014. He tried to obtain employment in
2015 but
was only able to perform piece-jobs
once or twice a
week for about
two years with an enterprise called
"Underfoot",
supervising the
installation of wooden floors.
He secured this
work through the help of his
friends. He was eventually asked to leave, after he was told that he
was "not alright".
He had a matric certificate and a grade
10 driver's licence.
25.
The report of industrial psychologist JJ Prinsloo indicates the
following conclusions:
a.
Pre-accident, Ratshikombo would have worked in various semi
skilled positions such as installer or driver
or construction worker
in the non-corporate labour market, comparable to a Paterson 82 job
as ultimate career ceiling;
b.
Post-accident, Ratshikombo has been rendered unemployable in the open
market.
26.I
have had regard to the actuarial report of Jacobson. There was
adequate proof of Rathsikombo's income. His assessment of the
loss of
income pre accident of R244 462,00 is consonant with the
earnings of a semi-skilled worker, reaching the upper quartile
at 45
and retiring at 65. A 5% contingency deduction is fair, the resultant
figure, after income earned, being R221 858,00.
27.Post
accident, a contingency deduction of 15% is fair, resulting in post
accident loss of R1 945 451,00. I see no reason
to interfere
with the assumptions and reasoning of Mr Jacobson, nor the extent of
the contingency deductions, considering the consistencies
between the
evidence given and the assumptions relied upon in his calculations.
28.
The determination of general damages is an inexact science and
requires consideration of various factors. I have taken
note of
the severity and complexity of the injuries, the need for future
treatment which needs to recur in the future, the unabated
headaches,
pain, mental health issues, the compromised mobility and
unemployability of Ratshikombo.
29.
The case of
Nepgen v
RAF 2012
(6A4) OOD
1
29
ECP
is comparable in several material respects. The
plaintiff in Nepgen suffered a severe brain injury, and
fractures of
the right tibia and fibula and left
clavicle. He was left with cortical
blindness
and intellectual
compromise, pain and backache. In 2017
terms,
the value of the award
equates to R1 193 000,00. In casu, with the
multiple injuries
suffered to a young working
man of 29 at the time of the accident, including the severe
brain
injury, and the serious sequelae, which are of a
continuous nature, the amount of R1 200 000,00 is a justifiable award
for general
damages.
30.
In the result order outlined above was duly granted.
_____________________________
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
22
March 2017
Appearances
Counsel
for the Plaintiff:
Advocate S G Maritz
Instructed
by:
N van der Walt Inc. Attorneys
Counsel
for the Defendant: Advocate M L Modika
Instructed
by:
Marivate Attorneys
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Before
her Honourable Judge Brenner (J) on the of 10
th
March 2017
Case
no: 91771/2015
In
the matter between:
PM
RATSHIKOMBO
PLAINTIFF
and
ROAD
ACCI
DENT
FUND
DEFENDANT
DRAFT
ORDER
Having
heard counsel for the Plaintiff and the Defendant the following order
is made:
1.
Defendant is to pay Plaintiff an amount of
R3 367 309, 00
comprising
R1200
000,00 for general damages,
R221
858,00 for past loss earnings
R1
945 451,00 for future loss of earnings
on
or before 30 April 2017, said amount to be paid into the following
bank details:
N
VD WALT INC NEDBANK EDENVALE
ACCOUNT
NUMBER […..]
TRUST
ACCOUNT
BRANCH
CODE: 128842
REF:
PM RATSHIKOMBO
I
RAF
Failure
to make payment by aforementioned date will result in interest
calculated at 10.25% per annum being charged from date hereof
to date
of payment in full.
2.
Defendant is to provide Plaintiff with an Undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
for the
costs of the future accommodation of the Plaintiff in a hospital or
nursing home or treatment of or rendering of a service
to him or
supplying of goods to him arising out of the injuries sustained by
him in the motor vehicle collision that occurred on
4 November 2013
after such costs have been incurred and upon proof thereof.
3.
The reasonable remuneration of and the reasonable costs incurred by
the trustee of the trust to be informed in administering
and managing
the capital amount referred to in paragraph 1 above, which
remuneration and costs shall not exceed the equivalent
amount which a
curator bonis
would have been entitled in terms of and as
determined by the
Administration of
Estates
Act,
Nr
66
of
1965,
as amended, and the prescribed tariff
applicable to
curators
as contained in the Government
Gazette Notice R1602 of 1st of July 1991, and, more
specifically, paragraphs 3(a) and 3(b) of
the schedule thereto.
4.
Defendant is to pay Plaintiff's taxed or agreed Party and Party costs
on a High Court scale including the costs of Senior Junior
Plaintiff's counsel.
5.
The costs aforementioned will include, inter alia:
5.1
all the expert reports which are in the possession of the Defendant
and of which
Notice in terms of the Rules have been given, the
preparation of all reports (including the costs of all x-rays and
scans) and
qualifying and reservation fees of the experts, addendum
reports, joint minutes and preparation of RAF4 reports (if any), as
the
Taxing Master may, upon taxation, determine. These experts are:
5.1.1
Dr Birrell
I
Close;
5.1.2
Dr JPM Pienaar;
5.1.3
Dr JH Kruger;
5.1.4
N Prinsloo;
5.1.5
JJ Prinsloo;
5.1.6
G Jacobson.
5.2
The travelling and accommodation costs of the Plaintiff for
attending the medico-legal
appointments;
6.
The payment of the costs referred to above is subject to the
following:
6.1
The Plaintiff shall, in the event that costs are not agreed between
the Defendant
and the Plaintiff's attorney, serve the notice of
taxation on the Defendant's attorney of record; and
6.2
Following agreement on or taxation of the party and party costs, the
Plaintiff
shall allow the Defendant 14 (FOURTEEN) court days after
the allocator has been made available to the Defendant, to make
payment
of the taxed or agreed party and party costs.
7.
The award shall be protected by means of a trust.
8.
The formation of a trust, of which the Plaintiff shall be the sole
beneficiary is hereby authorised and Werner Botha of Uberrima
Trust
Pty Ltd shall be appointed as trustee. The appointment of the trustee
is subject thereto that the trustee furnishes security
to the
satisfaction of the Master of the High Court. It is in the trustee's
sole and absolute discretion to:
8.1
Acquire any shares, unit trusts, debentures, stocks, negotiable
instruments,
mortgage bonds, notarial bonds, securities, certificates
and any moveable or immovable property or any incorporeal rights and
to
invest in such assets and to lend funds to any party or make a
deposit or investment with any institution, such investment to be
of
such nature and on such terms and conditions as the trustee may deem
fit;
8.2
Exchange, replace, re-invest, sell, let, insure, manage, modify,
develop, improve,
convert to cash or deal in any other manner with
any asset which from time to time forms part of the trust funds;
8.3
Borrow money;
8.4
Pledge any trust assets, to encumber such assets with mortgage bonds
or notarial
bonds to utilise same as security in any manner
whatsoever;
8.5
Institute or defend any legal proceedings or otherwise to take any
other steps
in any court of law or other tribunal and to subject
controversies and disagreements to arbitration;
8.6
To call up and/or collect any amounts that may from time to time
become due
to the trust fund;
8.7
Settle or waive any claim in favour of the trust;
8.8
Exercise any option and to accept and exercise any rights;
8.9
Exercise any rights or to incur any obligation in connection with any
shares,
stocks, debentures, mortgage bonds or other securities or
investments held by this trust;
8.10
Open accounts at any bank or other financial institution and to
manage such
accounts and if necessary to overdraw such account.
8.11
Draw any cheque or promissory note, to execute or endorse same;
8.12
Take advice from any attorney or advocate or any other expert for the
account
of the relevant trust account;
8.13
Lodge and proof claims against companies in liquidation or under
judicial management
and against insolvent or deceased estates;
8.14
Appoint professional or other persons on a temporary or permanent
basis to
conduct the whole or any portion of the business of the
trust under supervision of the trustee or to manage the investment of
part
or the entirety of the funds of the trust and
to remunerate such persons for their services
out of the
funds of the trust;
8.15
Form any company and to hold any interest in any company and to form
any other
trust to hold an interest in any other trust or partnership
or undertaking for the purposes of this trust or in the interest of
any beneficiary;
8.16
Amalgamate with any other trust with the same or similar aims as this
trust;
8.17
Commence any business or continue such business or to acquire an
interest therein
and for such purpose to acquire assets or to incur
expenses and to partake in the management, supervision and control of
any business
and to conclude any partnership or joint venture;
8.18
Accept any disposal in favour of this trust and to comply with any
conditions
regarding such disposal;
8.19
In general do all things and to sign all documents required to give
effect
to the aims of this trust.
BY
ORDER
_________________
REGISTRAR