Brief Summary

Damages — Road Accident Fund — General damages and loss of earnings — Plaintiff injured in motor vehicle accident, resulting in blindness and other injuries — Defendant conceded merits but disputed quantum of damages — Court awarded R1 350 000 for general damages and R1 565 813 for loss of earnings, applying 10% past and 20% future contingencies — Court held that the defendant must compensate for the greater loss suffered due to the accident, despite pre-existing condition.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an action for delictual damages arising from a motor vehicle collision. The proceedings were brought in the High Court of South Africa, Gauteng Division, Pretoria, under case number 30173/2014, and were decided by Tolmay J on 6 December 2016.

The plaintiff, M G Ntsukanyane, sued the defendant, the Road Accident Fund, for compensation for bodily injuries sustained in a collision on 6 July 2012. The matter came before the court on the basis that the merits had been conceded by the defendant, with the consequence that the litigation concerned only issues of quantum.

Procedurally, the court recorded that the plaintiff qualified for an undertaking in terms of section 17(4)(a) of the Road Accident Fund legislation referred to in the judgment, and that no past medical expenses were claimed because the plaintiff was treated at a public hospital. The remaining disputes for determination were general damages and the appropriate contingencies to be applied to the actuarial computation of past and future loss of earnings, with the parties having agreed to limit the earnings basis to pre-noncorporate sector earnings.

2. Material Facts

The collision occurred on 6 July 2012 and resulted in severe injuries to the plaintiff. Before the collision, the plaintiff had previously lost his right eye as a child, but testified that notwithstanding that impairment he lived a “perfectly normal life” up to the accident and functioned independently.

As a result of the collision, the plaintiff sustained head and facial injuries that led to the loss of his left eye, rendering him blind. The court also accepted that he suffered facial scarring (with further surgery anticipated), regular headaches, a disc lesion with early arthritis at the C3/4 and C4/5 levels (with future surgery contemplated), a severe chest injury with thoracic pain and scarring, and depression.

On the economic history relevant to loss of earnings, the court accepted that the plaintiff had been employed at Impala Platinum and Chrome mines as a mine planner from 2005 to 2008, and that he was dismissed in 2008. The plaintiff testified that he regarded the dismissal as unfair and had challenged it; the labour matter would have proceeded to trial during 2012 but, due to the accident, he missed the trial date and the dispute was still pending at the time of the damages trial.

After dismissal, the plaintiff was self-employed. He owned a taxi used for transporting schoolchildren, assisted his brother in a nightclub business, and did drafting work as a draftsman producing plans for clients. The plaintiff’s evidence was that his drafting income varied and was not supported by invoices; he could not recall precise figures but stated it sometimes reached about R10 000 per month. The industrial psychologist’s view, as recorded by the court, was that the plaintiff would probably have remained self-employed as a draftsman, though he had the capacity to work in positions similar to his pre-morbid employment and would likely have earned until retirement age with increases influenced by inflation. The industrial psychologist noted there were no benchmarks for self-employed persons and suggested annual earnings in a range.

The parties’ dispute on contingencies was not about the existence of injury-related incapacity in the abstract, but about the degree of uncertainty in quantifying earnings given the plaintiff’s informal/self-employed earnings records and employment trajectory. The plaintiff contended for 10% past and 20% future contingencies, while the defendant contended for 15% past and 30% future contingencies.

On general damages, a material disputed contention raised by the defendant was that because the plaintiff had already lost one eye before the collision, the defendant should not be liable for the plaintiff’s ultimate blindness. The court treated that contention as incorrect in law, applying the principle that a wrongdoer must take the victim as found.

3. Legal Issues

The court was required to determine, on the conceded merits, the appropriate quantum under two principal heads.

The first central question was the appropriate contingencies to apply to the actuarially calculated past and future loss of earnings, given the plaintiff’s employment history (including dismissal, informal self-employment, and the unresolved labour dispute) and the uncertainties inherent in projecting earnings.

The second central question was the proper award for general damages for the plaintiff’s injuries, in particular the consequences of being rendered totally blind, together with associated sequelae such as scarring, pain, and depression, and the effect of those injuries on the plaintiff’s quality of life.

These issues largely concerned the application of legal standards and discretionary evaluation to facts that were either common cause (the collision, the injuries sustained, the conceded merits) or accepted on the evidence (the nature of the plaintiff’s pre-accident functioning, his employment history, and his post-accident dependence and emotional distress). The determination of contingencies and general damages involved a value judgment within the trial court’s discretion, rather than a purely mechanical or mathematical exercise.

4. Court’s Reasoning

On contingencies, the court reiterated that contingency deductions fall within the discretion of the trial court and are not capable of being determined solely by mathematical calculation or expert opinion. The defendant’s principal submission was that, because the plaintiff had been working in the informal sector and his income was not properly recorded, there was insufficient factual proof to justify the more favourable contingencies advanced by the plaintiff.

The court rejected the defendant’s approach as overlooking the plaintiff’s broader vocational profile and prospects. In particular, the court attached weight to the fact that the plaintiff was qualified and had previously been employed in the formal sector, and that he could potentially have re-entered formal employment once the labour dispute was resolved. The court also noted the plaintiff’s qualifications, including a diploma in civil engineering, and treated those as relevant to assessing the probabilities that underpin contingency deductions. Exercising its discretion, the court found the plaintiff’s proposed contingencies to be more appropriate and therefore applied 10% for past loss and 20% for future loss.

On general damages, the court addressed and rejected the defendant’s argument that it should not be liable for the plaintiff’s blindness because the plaintiff had already lost one eye before the accident. The court applied the “take your victim as you find him” principle (referred to as the talem qualem rule in the judgment), holding that if a plaintiff sustains more serious loss because of a pre-existing vulnerability, the wrongdoer remains liable for that greater loss. On that basis, the defendant was obliged to compensate the plaintiff for having been rendered blind by the collision.

In evaluating the quantum for general damages, the court emphasised that such damages fall within the court’s discretion and that loss of vision is a profound loss. The court considered the plaintiff’s evidence about the consequences of blindness for his independence, dignity, emotional wellbeing, and family life. It accepted that prior to the collision the plaintiff had been ambitious, hardworking, and independent, and that after the collision he became unemployed and unemployable, dependent on family, and required surgery with further surgery anticipated.

The court used a comparable award as a guideline, referring to Van Der Merwe v Premier of Mpumalanga [2005] ZAGPHC 103, where an award was made to a girl rendered blind due to medical negligence, and it noted the inflation-adjusted equivalent. The court reasoned that becoming blind after previously having sight could, depending on circumstances, justify a higher award than congenital blindness, and stressed that comparable cases are guidelines only. On the facts, the court considered it material that the plaintiff’s blindness had affected not only his independence and enjoyment of life but was also associated, on the plaintiff’s account, with the loss of his relationship and the separation from his children. Taking these circumstances together, the court determined that R1 350 000 was a fair amount for general damages.

On the issue of a trust, the plaintiff’s legal representative sought an order creating a trust to manage the award. The court questioned the necessity of such a measure given the size of the award and the court’s view that the plaintiff was capable of managing his own affairs. The court recorded that it asked for further motivation but instead received draft orders. It concluded that there was no reason to order the creation of a trust, while noting that the plaintiff remained free to create a trust privately if he wished.

5. Outcome and Relief

The court ordered the defendant to pay a total amount of R2 915 813 in full and final settlement, comprising R1 350 000 for general damages and R1 565 813 for loss of earnings (as calculated with the contingencies of 10% past and 20% future). The amount was ordered to be paid into the plaintiff’s attorneys’ trust account.

The court further ordered that, in the event of default, interest would accrue at the mora rate contemplated by the Prescribed Rate of Interest Act 55 of 1975, calculated from the due date as contemplated in the Road Accident Fund Act until date of payment.

The defendant was ordered to furnish the plaintiff with an undertaking in terms of section 17(4)(a) for future hospital/nursing home accommodation, treatment, services, or goods arising from the collision injuries, after costs are incurred and on proof. If the defendant failed to furnish the undertaking within 30 days, it would be liable for additional taxable party-and-party costs incurred to obtain it.

The defendant was ordered to pay the plaintiff’s taxed or agreed party-and-party costs, with the order specifying inclusions such as reserved costs (if any), costs related to the previous trial date and counsel’s fees, current trial counsel’s fees including heads of argument, costs of obtaining medico-legal and actuarial reports, reasonable qualifying/preparation/reservation fees of experts and related consultations, certain travel/accommodation costs on proof, plaintiff’s attendance costs as a necessary witness, and translation costs for medico-legal appointments on proof. The order also regulated taxation notice and payment timelines, and provided for interest on taxed costs in the event of default.

Cases Cited

Wessels v AA Onderlinge Assuransie Assosiasie Co (Pty) A 3-19; De Jongh & Du Pisanie N.O. (obo J A Rabe) CoD J2-103 ON J2–119 para 47 (as cited in the judgment; full law-report citation not provided in the text).

Smit v Abrahams 1992 (3) SA 158 (C) at 171.

Road Accident Fund v Marunga 2003 (5) SA 164 (AD) at 169E.

Van Der Merwe v Premier of Mpumalanga [2005] ZAGPHC 103.

Legislation Cited

Road Accident Fund Act (referred to in the judgment as Act 56 of 1966 as amended by Act 19 of 2005; and also referred to in the order as Act 56 of 1996), section 17(4)(a).

Prescribed Rate of Interest Act 55 of 1975 (as amended).

Rules of Court Cited

No rules of court were cited in the judgment text provided.

Held

The court held that, with merits conceded, the outstanding issues concerned the quantum of general damages and the appropriate contingency deductions for past and future loss of earnings. It held further that contingency deductions are discretionary and, on the facts (including the plaintiff’s qualifications and realistic prospects of re-entering formal employment), the plaintiff’s proposed contingencies of 10% (past) and 20% (future) were appropriate.

The court also held that the defendant remained liable for the plaintiff’s blindness notwithstanding the plaintiff’s pre-existing loss of one eye, applying the principle that a wrongdoer must take the victim as found. It awarded R1 350 000 as general damages and declined to order the creation of a trust to administer the award.

LEGAL PRINCIPLES

The judgment applied the principle that the assessment of contingency deductions for loss of earnings is a matter within the trial court’s discretion and cannot be reduced to a purely mathematical or expert-driven computation; it requires a judicial evaluation of the probabilities and uncertainties affecting earnings capacity and career trajectory.

It applied the principle that a defendant must take the plaintiff as found (the talem qualem rule), with the consequence that a defendant is liable for the full extent of loss actually caused, even where a pre-existing vulnerability means the plaintiff suffers more severely than another person might have.

It reaffirmed that the assessment of general damages is discretionary and that comparable awards serve as guidelines rather than determinative benchmarks, with the ultimate award depending on the circumstances of the particular plaintiff and the impact of the injuries on the plaintiff’s life.

It also reflected that the establishment of a court-ordered trust to manage damages is not automatic and requires justification on the facts; absent demonstrated need, the court is not obliged to impose such a structure.

Ntsukanyane v Road Accident Fund (30173/2014) [2016] ZAGPPHC 1217 (6 December 2016)