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[2015] ZAGPPHC 174
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Motebejane v Road Accident Fund (24246/2013) [2015] ZAGPPHC 174 (11 March 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE GAUTENG DIVISION, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NO: 24246/13
DATE: 11 MARCH
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
L P
MOTEBEJANE
......................................................................................................
PLAINTIFF
And
THE ROAD ACCIDENT
FUND
................................................................................
DEFENDANT
JUDGMENT
MSIMEKI J:
INTRODUCTION
[1] The plaintiff
instituted an action against the defendant for damages which he
allegedly suffered arising from the injuries that
he sustained when
the insured motor vehicle bearing registration number D[...], he was
travelling in, overturned. S Mathebula was
the insured driver.
[2] Advocate C M
Dredge (Mr Dredge) and Advocate L G P Ledwaba (Mr Ledwaba),
respectively, represented the plaintiff and the defendant.
THE ISSUE
[3] From the
submissions of both counsel, the issue to be resolved appears to be
whether the plaintiff was employed prior to and
at the time of the
accident and thereafter.
[4] Indeed, the
court was called upon to determine the issue of employment and
salary. The parties referred to no other issue, but
this. The issue
in my view, is crisp and narrow.
[5] The plaintiff,
to support his case, testified. The plaintiff was armed with expert
reports which the defendant did not have.
Mr Ledwaba was constrained
to admit the plaintiffs expert reports.
[6] The plaintiff
testified and closed his case. The defendant, in the absence of the
expert reports and witnesses, was also bound
to close its case. Mr
Ledwaba intimated that he would only test the plaintiffs evidence by
using the plaintiffs reports.
[7] The plaintiff
testified that he passed grade 12. He received training in basic
ambulance assistance. He further received training
which would enable
him to work for KFC. He worked as a hairdresser with one Charlie
Seakamela who was his partner.
[8] He was involved
in an accident and this caused their salon to suffer. He had an added
problem when Charlie went to his home
in Limpopo leaving the business
unattended. The plaintiff testified that their business, had he not
been involved in the accident,
would still be thriving. The plaintiff
testified that while working at the salon his salary would either be
R4 000-00 or R4 500-00.
He could only do piece jobs after the
accident and he brought in approximately R1500-00 per month. This
evidence, which I accept,
has not been challenged.
[9] The plaintiffs
evidence, in the main, was unchallenged except for minor differences
in his testimony which, in my view, were
immaterial. The plaintiff
acquitted himself very well when he testified. His evidence was not
only plausible it was also simple,
straight forward and reliable. As
I alluded to above, the defendant had no evidence to controvert the
plaintiffs evidence. There
was virtually no version which Mr Ledwaba
could put to the plaintiff. The plaintiffs expert reports could not
be challenged. The
plaintiffs evidence, in the main, is in line with
the reports of his experts.
[10] Dr A C Strydom,
the industrial psychologist, supports the plaintiffs evidence.
The plaintiff,
according to her, “was able to earn between R29 000.00 and R8
8750.00 per annum. Had he been able to work as
an ambulance
assistance, his earnings would have ranged between R60 000.00 and R90
000.00 per annum”. Page 123 of the papers
demonstrates this.
[11] Rita Van
Biljon, the occupational therapist, reveals that the plaintif, during
the accident, vomited blood, his Glasgow coma
score was 15/15. He had
general body pain, tenderness over his cervical spine, bruises on his
chest, tenderness over his left hip
and left femur injury. He
presented with swelling of his forehead and left shoulder injury and
lost one tooth. The plaintiff also
had the following injuries: a soft
tissue injury to his neck, a soft tissue injury to his left thigh and
a concussive head injury.
[12] Dr Hans B
Enslin, the orthopaedic surgeon, concluded that the plaintiff has
symptoms of post traumatic stress disorder, a whiplash
injury to his
neck, impingement syndrome of his left shoulder and chondromalacia
behind his left patella.
[13] Rita Van Biljan
reports that the plaintiff experiences difficulties sleeping at
night. He further experiences occasional pain
when performing his
personal care. He has problems transferring in and out of the
bathtub.
[14] According to Dr
Enslin, the plaintiff “has not reached the 30% or more whole
person impairment but would qualify to be
awarded general damages on
the grounds of serious long term impairment and/or loss of function.”
He, according to Dr Enslin,
“has reached MM1 but the effect of
his injuries will be felt for years to come.”
[15] Rita Van Biljon
is of the opinion that the plaintiff “ will be able to meet the
weight handling requirement of sedentary
and light work.” She,
however, holds the view that he will experience difficulty meeting
the mobility requirements of light
and therefore a sedentary
environment is recommended.”
[16] According to Dr
Strydom, the plaintiff was employed as a hairdresser at the time of
the accident. He is now working as a self-employed
general worker. He
enjoyed “good health prior to the accident and he probably had
the capacity to have continued working
until the usual retirement age
of 65.”
[17] The plaintiffs
income generating potential, according to Dr Enslin, remains
“affected by his chronic pain, as well as
by a major depressive
disorder”. The Dr noted that the plaintiff cannot perform all
of the work tasks that he previously
performed.” The plaintiff
is vulnerable and less competitive than younger and healthier job
seekers in the open labour market.
With his certificate as an
Ambulance Assistant and a certificate in Restaurant training,
according to the Dr, the plaintiffs employment
within these positions
would seem unlikely.
[18] I have accepted
the plaintiffs evidence regarding his employment and salary. The
remaining issue to be determined is that of
contingencies to be
applied to his past and future earnings.
[19]
The parties are
ad
idem
when
it comes to amounts. The differences relate to the percentages to be
applied. The parties agree that 5% / 5% should be applied
to the past
earnings. Mr Ledwaba held the view that when in doubt the court
should apply 50% / 50% to the future earnings. Mr Dredge,
for the
plaintiff, held the view that for past earnings 5% / 5% should be
applicable while 15% /15% should be applied in respect
of future
earnings. I agree.
[20] The defendant
never controverted the plaintiffs evidence. The defendant, in the
absence of their evidence and their expert
reports became bound to
admit and accept the plaintiffs expert reports. It had no
alternative. Having considered the plaintiffs
evidence and his expert
reports, which in any event, were admitted and accepted by the
defendant, Mr Dredge’s submission
has merit and is acceptable.
[21] The past loss
of earnings based on 5% / 5% amounts to R144 427.00. The future loss
of earnings based on 15% / 15% amounts to
R653 251.35. We get our
total loss of earnings by adding R144 427.00 to R652 251.35 and that
gives us the total loss of R797 678.35.
This is the amount that the
defendant is liable to pay the plaintiff.
[22] Mr Dredge
provided me with a draft order which I have perused and accepted.
[23] The draft
order, in my view, is in order as it covers everything that needed to
be covered.
[24]
I, in the result
make the following order:
The draft order
“X” signed and dated and annexed hereto is made an order
of the court.
M.W. MSIMEKI
JUDGE OF THE
GAUTENG DIVISION
PRETORIA
COUNSEL FOR THE
PLAINTIFF: ADV C M DREDGE
INSTRUCTED BY:
VAN ZYL LE ROUX INC
COUNSEL FOR THE
DEFENDANT: ADV L G P LEDWABA
INSTRUCTED BY:
IQBAL MAHOMED ATTORNEYS
DATE OF HEARING:
28 OCTOBER 2014
DATE OF JUDGMENT:
11 MARCH 2015
IN THE HlGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case num: 24246/2013
28 October 2014
Before the
Honourable Justice
MSIMEKI
In the matter
between:
LAWRENCE
PUDURU MOTEBEJANE
…...................................................................................
Plaintiff
and
ROAD
ACCIDENT FUND
…........................................................................................................
Defendant
DRAFT ORDER
AFTER HAVING
HEARD COUNSEL, IT IS ORDERED THAT:
1.1
The Defendant is
to
pay
the Plaintiffs attorneys the sum of R 797678.35
The Plaintiffs
Attorney's trust account details are as follows:
ACCOUNT HOLDER:
VAN ZYL LE ROUX INC
BRANCH: ABSA VAN
DER WALT STREET
BRANCH CODE:
323345
TYPE OF ACCOUNT:
TRUST ACCOUNT
ACCOUNT NUMBER:
[...]
1.2 In the event of
default on the above payment, interest shall accrue on such
outstanding amount at 9% per annum calculated from
due date until the
date of payment;
1.3 That the issue
of general damages is separated from all the other issues in terms of
rule 33(4), with the aforementioned being
postponed sine die.
2
.
2.1
The Defendant shall furnish the Plaintiff with an Undertaking in
terms of Section 17(4)(a) of Act 56 of 1996, limited to 80%
(eighty
present) in respect of future accommodation of the Plaintiff in a
hospital or nursing home or treatment of or the rendering
of a
service or supplying of goods to the Plaintiff (and after the costs
have been incurred and upon submission of proof thereof)
arising out
of the injuries sustained in the collision which occurred on
4
December 2005.
2.2 If the Defendant
fails to furnish the undertaking to the Plaintiff on due date, the
Defendant shall be held liable for the payment
of the taxable party
and party additional costs incurred to obtain the undertaking;
3.
The Defendant to pay
the Plaintiffs taxed or agreed party and party cost in the above
mentioned account, for the instructing attorneys,
which cost shall
include, but not be limited to the following:
3.1 All reserved
cost to be unreserved if any;
3.2 The fees of
Counsel;
3.3 The cost of
obtaining all expert medico legal- and any other reports of an expert
nature which were furnished to the Defendant;
3.4 The reasonable
taxable qualifying, preparation and reservation fees of all experts,
if any;
3.5 The reasonable
traveling- and accommodation cost, if any, incurred in transporting
the Plaintiff to all medico-legal appointments;
3.6 The
above-mentioned payment with regard to costs shall be subject to the
following conditions:
3.6.1 The Plaintiff
shall, in the event that costs are not agreed, serve the notice of
taxation on the Defendant's attorney of record;
and
3.6.2 The Plaintiff
shall allow the Defendant 14 (fourteen) calendar days to make payment
of the taxed costs.
There
exists no contingency
fee
agreement
between the Plaintiff and the Plaintiff's attorneys.
By Order of the
Court
REGISTRAR