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[2016] ZAGPPHC 156
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Molefe v Road Accident Fund (31533/2012) [2016] ZAGPPHC 156 (1 March 2016)
IN
THE HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NUMBER: 31533/2012
DATE:
1/3/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter
between:
M
OL
EFE,
TP
PLAINTIFF'
and
ROAD
ACCIDENT
FUND
DEFENDANT
STRIJDOM
AJ:
JUDGMENT:
A.
INTRODUCTION
1.
The Plaintiff sues under the Motor Vehicle Insurance Act for damages
in respect of the loss of earnings suffered as a result
of the motor
vehicle accident which occurred on or about 29 October 2012.
2.
The Plaintiff suffered the following injuries as a result of the
accident:
2.1.
Bruises to the left foot;
2.2.
Low back pain;
2.3.
Left shoulder pain;
2.4.
Chest pain.
2.5.
Moderate to severe head injury;
3.
The Plaintiff has the following sequalae as a result of the injuries
sustained in the accident:
3.1.
Pain left foot, which is exacerbated by prolonged
standing and
walking;
3.2.
Chest pain - this is worsened in exertion;
3.3.
Chronic headaches;
3.4.
Low back pain;
3.5.
Chronic post traumatic stress disorder with clinical
features of
anxiety
I
depression.
3.6.
Her chronic pain syndrome has detrimental effect
on her self- esteem,
body image and self efficacy. The distressing, recurrent, intrusive
memory precipitate hyper arousal, sleep
disturbances, loss of
appetite, anxiety, inertia and poor concentration.
4.
The Defendant has conceded the merits and is providing an undertaking
in terms of Section 17(4)(a) of the Road Accident Fund
Act, 56 of
1994.
I
SSUES
IN DISPUTE:
5.
The issue of quantum (loss of earning capacity) is in dispute.
EXAMINATION
BY
MEDICAL
EXPERTS:
6.
The following expert reports were obtained by the Plaintiff and
Defendant:
6.1.
Dr P Kumbirai, orthopeadic surgeon;
6.2.
Dr TP Sekati, occupational therapist;
6.3.
Dr P Baloyi, industrial psychologist;
6.4.
Dr B Tlhabane, educational psychologist;
6.5.
George Schwalb, actuarial consultant;
6.6.
Munro, forensic actuaries;
6.7.
Dr Kobus Biljon, clinical psychologist;
6.8.
· Dr K Bila, orthopeadic surgeon.
7.
No
viva voci
evidence was tendered by the Plaintiff and
Defendant.
LOSS
OF EARNINGS
CAPACITY:
8.
The Defendant submitted that the Plaintiff's capacity to work loss
has impaired to a certain extent, and therefore the Court
should
consider the capacity of loss to the extent of her partially
diminished patrimony in future. In this regard, the value of
the
pre-morbid and post-morbid should be considered the same and an
appropriate contingency deduction is to be applied.
9.
The Defendant tendered to the Plaintiff an amount of R1,183,212.50 as
a final settlement for the loss of earning capacity.
10.
The Plaintiff is currently a lerner and was a learner doing grade 10
at the time of the accident.
QUANTUM
BACKGROUND:
11.
According to the orthopeadic surgeon,
Dr
Kumbirai, the Plaintiff will not be
able
to
complete
fairly
i
n
the open
l
abour
market.
The
pain
in her
l
eft
foot, low back, chest and the chronic
headaches
may
limit her choice
of
occupat
i
ons
which
require
pro
l
onged
standing,
walking,
l
ifting
of
heav
y
.
weights may aggravate her pain. Her
l
oss
of earning capacity is estimated to be at
l
east
1
%
in such jobs.
[1]
12..
According to the educational psychologist the Plaintiff experienced a
slight decline in her school performance during the year
in which the
accident occurred, meaning that she struggled to cope and focus as
she had to endure discomfort due to the accident.
Her school
performance declined for the period of two years after the accident.
This could be related to the accident as she had
to take time off to
nurse her injuries and lose focus on her work.
13.
Her 2014 final year Matric results show a bit of improvement as
compared to previous results. This is not a significant looking
at
how she used to perform before the accident.
14.
Her
performance
before
the
accident
shows
that
she
could
have
progressed
to NQF7 -
tertiary
l
evel.
However, at this stage
h
er
results
i
ndicates
that
she
has
met
the
requirement
to
progress
up
to
NQF
l
evel
6
-
Diploma -
which
is not satisfactory.
[2]
15.
According to the clinical psychologist the Plaintiff has Chronic Post
Traumatic Stress Disorder which clinical features of anxiety
I
depression. Her chronic pain syndrome has detrimental effect on
her self esteem, body image and self efficacy. The distressing,
recurrent, intrusive memories precipitate hyper arousal, sleep
disturbances, loss of appetite, anxiety, inertia and poor
concentration.
She presents with co-morbidity, i.e depression,
generalised anxiety disorder, distress and adjustment disorder.'
16.
The
occupational therapist
i
s
of the opin
i
on
that the Plaint
i
ff
will contin
u
e
to struggle with physically based occupations.
She
has never been pain free
since
the accident.
[3]
17.
As far as the industrial psychologist is concerned the Plaintiff
maintained the ability to progress to NQF 7 level scholastically
before entering the open labour market per-accident, then the
following likely scenario would suit the Plaintiff's profile:
"She
would enter the labour market of B4/B5/C1 level earning advancing to
maximum earnings level of 01+ at the age of approximately
45 years.
She would then receive annual inflationary increases until
retirement."
18.
Having regard to the accident. It is the industrial opinion that the
Plaintiff will not be able to reach her per-accident potential.
The
educational suggest that she might be able to qualify for a Diploma,
however, in a less demanding position as she has physical
challenges.
19.
Earnings in those positions are limited to the categories in the
8218-3 to C3/C4 Paterson levels. This implies that she will
be
limited to lower paying positions as compared to how she would have
earned when her preaccident scenario is considered.
20.
In light of the findings by the clinical psychologist the industrial
is of the view that she may be at risk of experiencing
fluctuating
drive or motivation to study or work as well as fluctuating success
to build and maintain effective relations with
other people in a
working situation.
21.
Due to her physical and psychological challenges, these challenges
may, limit, delay or restrict her scholastic, academic and
career
prospects and further affect her chances of recurring herself
employment in the open
l
abour
market.
[4]
ACTUARIAL
CALCULATIONS:
22.
The summary of the actuarial results are as follows:
22.1.
S
ummary
of results:
Uninjured
Injured
Loss
of
Income:
Income:
Income:
Future:
R9,465,700
R6,810,600
R2,655,100
23.
Having considered the various medico-legal reports, the different
legal approaches and the submissions, by both counsel for
the
Plaintiff and the Defendant, I am persuaded that:
23.1.
The total loss of earnings
I
income suffered by the
Plaintiff is R2,597,365.00.
24.
In the result,
The
Draft Order annexed hereto marked "X" is made an Order of
Court.
_____________________________
JJ
STRIJDOM
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
DELIVERED
ON:
APPEARANCES:
Counsel
for Plaintiff: Adv
MG Senyatsi
Attorneys
for Plaintiff:
MT Makwela
Counsel
for Defendant:
Adv DM Matlabegoane
Attorneys
for Defendant: T
Molaba
I
N
THE
H
I
GH
COURT
OF
SOUTH
AFR
I
CA
GAUTENG
D
I
VISION,
PRETORIA
On
this the 20
th
November 2015
BEFORE
HONOURABLE
STRYDOM AJ
Case
Number: 31533/15
In
the matter between: -
MOLEFE:
TJELANE
PRIMROSE
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
DRAFT
ORDER
After
having heard both Counsel and having perused the papers, it is
ordered as follows:
1.
That the Defendant is liable for 100% of the Plaintiff's agreed or
proven damages.
2.
That the Defendant is liable to make paymet in the amount of
R2597
365 00 . (Two million five hundred and ninety seven and three
hundred and sixty five rand.
) the Plaintiff's claim of
damages suffered as a result of the injuries sustained in
a motor vehicle accident which
occurred on the 29th October 2012,
which amount shall be payable within 14 days of this order into the
Plaintiff s Attorneys of
record trust account as follows:
ACCOUNT
HOLDER :
_________________________
ACCOUNT
NUMBER
: _________________________
BANK
NAME :
_________________________
BRANCH
NAME
: _________________________
TYPE
OF ACCOUNT :
_________________________
M.T
MAKWELA ATTORNEYS
3.
The Defendant is ordered to furnish the Plaintiff with an undertaking
in terms of section 17(4) of the Road
Accident Fund No.56 of 1996, to
compensate Plaintiff for the cost of future accommodation in the
hospital or nursing home treatment
of a service or supplying of good
to Plaintiff from injuries sustained by him/her as a result of the
accident that occurred on
29th of October 2012, after the costs have
been incurred and on proof thereof.
4.
That the Defendant shall pay the Plaintiff s party and party costs on
High Court scale as taxed or agreed,
which costs shall include the
costs of the 19th November 2015 detailed as follows: -
4.1.
Reasonable costs emanating from court attendance and pre-trial,
preparation, research and perusal of
medico legal reports;
4.2.
Costs for a Counsel;
4.3.
The Plaintiffs travelling costs to and from all medico legal
appointments;
4.4.
Costs for all travelling expenses incurred in respect of the
Plaintiffs claim;
4.5.
The reasonable costs in respect of the preparation of all the medico
legal reports and addendum of
such medico legal reports;
4.6.
Reasonable costs incurred in obtaining the joints minutes of all
available Reports, if any;
4.7.
Costs for all Medico-legal reports furnished to the Defendant as well
as the reservation and qualifying
fees for the Experts.
5.
That the Plaintiff shall afford the Defendant 14 court days to make
payment of such costs.
_____________________
BY
ORDER
THE
REGISTRAR
For
Plaintiff: Adv M.G SENYATSI
For
Defendant:
_
[1]
See
page
46 of
the
paginated
index to Plaintiff's expert's reports
[2]
See page 70 of the paginated
index
to Plaintiff's expert's reports
[3]
See page 37 of the paginated
index
to Plaintiff's expert's reports
[4]
See page 74 of the paginated
index
to Plaintiff's expert's reports