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[2024] ZALMPPHC 13
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T.M.W v Road Accident Fund (1013/2018) [2024] ZALMPPHC 13 (30 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Case Number: 1013
/ 2018
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
______________
_________________________
DATE
SIGNATURE
In
the matter between:
T[…]
M[…]
W[…]
PLAINTIFF
AND
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MARAIS C AJ:
INTRODUCTION:
[1]
On 10 August 2009, at approximately 15h30,
along a road in Swartz, Mokopane, Limpopo Province, the Plaintiff,
T[…] M[…]
W[…], was involved in an accident
wherein an insured vehicle, driven by an unknown driver, with
registration number: FHM[…]
(the “
insured
driver
”
) collided with a donkey
cart. The Plaintiff was a passenger in the donkey cart, which was
driven by an adult male known as NG Mpaneng.
At the time of the
accident, the Plaintiff was ten years old.
[2]
The Defendant is the Road Accident Fund
(“
RAF
”
),
which is a statutory body duly incorporated in terms of section 3 of
the Road Accident Fund Act 56 of 1996 (as amended) (
“
RAF
Act
”
) whose object is “…
the
payment of compensation in accordance with this Act for loss or
damage wrongfully caused by the driving of motor vehicles
”
.
[3]
Plaintiff
submitted that as a result of the accident, Plaintiff sustained a
head injury and a painful right clavicle. It is the
Plaintiff’s
case that because of the head injury, he will not be able to be
gainfully employed in the open market. Plaintiff
claims R100 000 in
respect of past medical expenses; an undertaking in terms of section
17(4)(a) of the RAF Act for future medical
expenses; R8 000 000 for
loss of earnings and R900 000 for general damages.
[1]
[4]
On 09 October 2023, RAF conceded 100% to
the merits and rejected the claim for general damages. It
further gave an undertaking
in terms of section 17(4)(a) of the RAF
Act for future medical expenses and offered to pay an amount of R440
713.60 in respect
of loss of earnings to Plaintiff.
[5]
On the same day, 09 October 2023, Plaintiff
accepted the merits concession made by RAF and the undertaking in
terms of section 17(4)(a)
of the RAF Act. However, Plaintiff rejected
the offer of R440 713.60 in respect of loss of earnings. Counsel on
behalf of the Plaintiff
elected not to proceed on the issue of
general damages and only moved for an order by default regarding the
loss of earnings.
MEDICO-LEGAL EVIDENCE:
[6]
The
Plaintiff submitted expert reports by a neurosurgeon,
ophthalmologist, clinical psychologist, educational psychologist,
occupational
therapist, industrial psychologist, and an actuary.
The
evidence was presented through affidavits as contemplated by
Rule
38(2).
The
Defendant did not file any expert evidence.
[7]
According to the neurosurgeon, Prof Patrick
Lekgwara, Plaintiff suffered soft tissue injury to his right eye and
a mild traumatic
brain injury – grade 3 concussion, which is
deemed to be a loss of consciousness that the Plaintiff suffered,
after the accident,
which lasted for more than five minutes or
post-traumatic amnesia for more than 24 hours. Prof Lekgwara
confirmed that the Plaintiff
had no speech difficulties, was of
average intelligence and could sustain attention throughout the
interview. He further
confirmed that the Plaintiff’s
emotional status was adequate and appropriate, and that the Plaintiff
did not display any
nervous system problems. His muscle bulk, tone
and power were normal, his spine was normal with no tenderness, and
his movements
were normal. His cerebellar system and reflexes were
all normal, and he had no cardiovascular system abnormalities. Prof
Lekgwara
concluded that the Plaintiff suffered a whole person
impairment of 23%, and that his injuries qualify under the narrative
test
as serious, in that the Plaintiff will suffer severe long-term
mental or severe long-term behavioural disturbance or disorder.
Further, Plaintiff had some neuropsychological problems which needed
to be assessed by a clinic psychologist, and he suffered from
post-concussion headaches. His longevity has not been affected as a
result of the accident. His amenities of normal living were
lost
during the period of hospitalisation.
[8]
The Plaintiff consulted Dr TT
Moabelo-Monareng, the ophthalmologist, with a complaint of tearing of
the right eye, which was caused
as a result of the accident. Dr
Moabelo-Monareng found that the Plaintiff’s visual acuity in
his right eye was abnormal.
The intraocular pressure was normal in
both eyes at 18 mm Hg. A dilated fundoscopic examination was done,
and a crowded disc in
the right eye was found, of which the clinical
significance is unknown. Dr Moabelo-Monareng concluded that the
injury sustained
did not affect the Plaintiff’s life expectancy
and that the Plaintiff will be able to manage his pain with chronic
painkillers
or may require alternative treatment such as acupuncture.
[9]
Ms LD Madileng, a clinical psychologist,
compiled a psycho-social and clinical functioning report. In Ms
Madileng’s report,
she confirmed that the Plaintiff is the
fourth-born child from six siblings. His three older sisters all
completed grade 12. His
two younger siblings are still at school. The
Plaintiff attended school to grade 12 but did not complete it. The
Plaintiff achieved
a certificate in Agri-entrepreneur and as a
Pre-chef. The Plaintiff is a known asthmatic patient on
medication prior to the
accident and known to be hypertensive. There
is a history of epilepsy.
[10]
The Plaintiff reported to both the
neurosurgeon and the clinic psychologist that he had to repeat grade
2, post the accident.
I will deal with this issue later in my
judgment.
[11]
The clinical psychologist concluded that
according to the psychological assessment conducted, the Plaintiff:
“
Mr
W[…] presented with above average attention abilities.
His working memory and
tracking abilities proved to be within the average level.
Sustained attention
limitations were observed to be within the low average level though
his psychomotor functioning confirmed average
functioning.
The rote verbal
learning abilities for Mr. W[…] were suggested by the tests to
be working within the above average functioning
while immediate
memory was presented to be within the low average at both verbal and
visual domain.
He presented with
verbal fluency difficulties while his understanding of social norms
and standards proved to be within the expected
level.
Mr
W[…] was further found to be easily irritable with anger
outburst tendencies. The injuries were found significant for
head
injury with the severity classified with the
mild
head injury with GCS 15/15
”
.
[12]
Ms Tlhoriso Sepenyane is an educational
psychologist. She compiled a report on the Plaintiff’s
cognitive, training and development,
academic potential and emotional
status. Her report was compiled to assist this Court in determining
whether the accident had a
negative impact on these constructs and
whether it will have a negative impact on the Plaintiff’s
ability to complete his
education or to be employable and be
promoted.
[13]
Ms Sepenyane confirmed that Plaintiff was
employed in 2022 as a construction worker supervisor but resigned as
the work was too
physically demanding for him. He is currently
employed as a security officer. The expert stated that the
Plaintiff’s
orientation or consciousness was alert, his speech
was normal, his work method was normal, and his attentive listening
was normal.
However, the Plaintiff’s attention concentration
was low. She observed no irritability. The expert opined that the
Plaintiff
presented with incapabilities in both verbal and non-verbal
functioning and that he could no longer achieve his pre-accident
potential.
She further opined that the Plaintiff presents with
borderline clinical depression, which notably hampers the Plaintiff’s
optimal concentration. According to Ms Sepenyane, the Plaintiff has
reached his academic threshold.
[14]
Ms RNM Shonisani compiled the occupational
report, and not much was gained from her report, although it is
replete with contradictions.
For example, Plaintiff conveyed to Ms
Shonisani that he was hospitalised for two days, which is confirmed
in the hospital records,
but in her summary, she stated he was
hospitalised for four days. Her summary further states that the
Plaintiff suffered
no loss of consciousness, whilst all other reports
stated that the Plaintiff did lose consciousness. In certain portions
of her
report, she states that the Plaintiff was a 22-year-old male,
and in other portions, she states he was 23 years old. The
occupational
therapist report thus did not assist this Court at all.
[15]
Mr OO Sechudi compiled an industrial
psychologist report. He postulates that if not for the
accident, the Plaintiff could
have matriculated in 2019 with a
B-degree endorsement (NQF4) and could have studied further to obtain
a B-degree of his choice
to reach NQF7. His earnings may have started
from at least Median of Peterson level B4 at R267 000 as a basic
salary as indicated
in the Corporate Survey Earnings Guidelines
(Koch, 2023). If his career progressed in a straight line, he
could have earned
towards the Median of Paterson level D1 of R745
000.00 per year, basic salary, until the age of 46, after which his
salary would
have stabilised with additional inflationary increases
until the retirement age of 65.
[16]
The industrial psychologist concluded that
post-accident, the Plaintiff earns R5 500 per month, which is
equivalent to R66 000 per
year. His earnings are comparable to those
of a semi-skilled worker between the Lower Quartile (R36 800) to the
Median (R78 000)
per year. Further, as a semi-skilled worker
with cognitive and psychological impairments as well as vision
challenges, the
Plaintiff may not be able to sustain gainful
employment over a long period. The Plaintiff’s pursuit of
employment will be
restricted to short-term sporadic piece jobs or
contractual work that may offer some financial survival with minimal
wages. His
restrictions will constrain the Plaintiff’s wish to
pursue work in the open market.
[17]
Koch Consulting Actuaries CC, compiled an
actuary report consisting of only one page, with an annexure. It
states that Plaintiff
suffered no past loss of income uninjured but
suffered a past loss of income, injured of R88 582. The
uninjured future loss
of income was calculated at R10 653 340, and
the injured future loss of income was calculated at R1 616 251.
The difference
in loss of income is thus calculated as R8 948 507,
with no contingencies applied. No explanation was given as to
how the
actuary came to this figure and or which factors he took into
account.
ANALYSES OF THE
EVIDENCE:
[18]
The clinical psychologist's report, as
stated afore, does not correlate to her ultimate finding that the
Plaintiff could be challenged
in a work environment that requires
intense attention and concentration and that the Plaintiff was
observed to have poor short-term
memory, displayed with limited
memory recalling skills. The psychological assessment demonstrated
that the Plaintiff presented
above average attention abilities and
that his working memory and tracking abilities were within the
average level. The rote verbal
abilities of the Plaintiff proved that
the Plaintiff tested above average. The tests proved that the
Plaintiff only struggled
with immediate memory problems within the
low average level. The most significant concern detracted from
this test is that
the Plaintiff was easily irritable with anger
outbursts. These concerns can, in my view, be treated through
psychological
therapy. No evidence was placed before me that it was
not curable.
[19]
Curiously, Ms Sepenyane, the educational
therapist, did not provide information on the Plaintiff’s grade
1 year. She only
confirmed that the Plaintiff had to repeat grade 2
after the accident in 2009. The Plaintiff passed grade 2 in 2010. In
grade 3,
Plaintiff passed all his subjects and obtained level 4
(good) for Sepedi and mathematics; in English and Life Orientation,
he achieved
level 3 (average). The older the Plaintiff became, the
more he struggled with his schoolwork. In grade 10, the Plaintiff did
not
achieve the requirements and progressed to grade 11. During the
first term of grade 11, Plaintiff failed, and no reports were given
on the second to fourth terms. Plaintiff failed grade 12 twice and
then dropped out of school.
[20]
No explanation was given for why the
Plaintiff was ten years old, in grade 2. It is generally
accepted that a child is between
the ages of seven and eight when
such a child enters grade 2. If the Plaintiff were indeed ten
in grade 2, prior to the accident,
it would suggest that the
Plaintiff either failed grade 1 or was sent to school later for
unknown reasons. The inference is drawn
that the Plaintiff could have
struggled with his concentration and memory before the accident.
[21]
The occupational therapist reported that
the Plaintiff entered grade 1 in 2006. In this year, the Plaintiff
was seven years old.
If it is accepted that Plaintiff passed
grade 1 in 2006, he should have been in grade 2 during 2007, and not
2009 as alleged, when
the accident occurred. The only inference that
this Court can draw is that Plaintiff entered grade 1 in 2006 and had
to repeat
this grade three times before he was ten years old in grade
2 in 2009 or that he repeated both grade 1 and grade 2 before the
accident.
This is a telltale that the Plaintiff struggled cognitively
before the accident.
[22]
In contrast to what the Plaintiff
confirmed to the occupational therapist, that he entered grade 1 in
2006, the Plaintiff informed
the industrial psychologist that he
entered grade 1 in 2008. In 2008, the Plaintiff was nine years old.
Again, no explanation was
given why the Plaintiff only entered grade
1, at the age of nine.
[23]
Similarly, Plaintiff stated to the
industrial psychologist that in 2009, he was in grade 2, and it is
common cause that he repeated
grade 2 in 2010. The report
further states that in 2016 the Plaintiff was in grade 10. It is not
possible. If the Plaintiff
was in grade 10 in 2016, then he
ought to have been in grade 9 in 2015, grade 8 in 2014, grade 7 in
2013, grade 6 in 2012 and grade
5 in 2011. Three grades are
thus unaccounted for.
[24]
The industrial psychologist does not state
for which profession the Plaintiff would have earned the Median of
Peterson level B4
at R267 000 as a basic salary, and if his career
progressed in a straight line, he could have earned towards the
Median of Paterson
level D1 of R745 000.00 per year, basic salary. It
is accepted that different professions earn different salaries.
Without an inclination
as to what the Plaintiff could have or wanted
to study, it is difficult to comprehend how the industrial
psychologist applied and
concluded that the Plaintiff could have
earned the figures, as stated.
[25]
The expert took no cognisance that both
parents of the Plaintiff were uneducated and unemployed. According to
the Plaintiff, his
three older sisters matriculated (which is
unconfirmed), and they are unemployed. His two younger siblings are
still at school.
The Plaintiff's home environment is dire. It is
confirmed to be a brick-and-zinc house with five rooms and ten
occupants. There
is no bathroom. The occupants use a basin. Water is
collected from a tap in their yard. These are all negative
factors that
the expert should have considered, as it demonstrates a
genetic predisposition not favourable to the Plaintiff’s case.
[26]
Another issue that cannot be ignored is
that the Plaintiff – even though he says he struggles to
concentrate and is forgetful-
still obtained two certificates:
one wherein he completed an internship in Agri-entrepreneurship and
the second, as a pre-Chef.
These are positive factors which the
experts should have considered.
[27]
I also have difficulty accepting the
accuracy of the
unsigned
actuary
report. As stated before, it was a one-pager with an annexure. It is
marked ‘certificate of value’, that the
certificate is
only ‘intended for settlement purposes’ and that the
‘full report will be prepared on request’.
No full report
was placed before me.
[28]
The actuary only took one consideration
into account, being that it is to be assumed that the Plaintiff will
start work from July
2024, earning R267 000 per year at Median level
B4, followed by even linear real increases to R745 000 per year at
age 45 at Median
level D1, but for the accident. Post-accident,
the Plaintiff is to earn R24 000 per year from June 2019 to August
2020. Then
nil until R66 000 per year from February 2023, with no
further career progression, and escalating until the age of 65.
APPLYING LEGAL
PRINCIPLES:
[29]
In
terms of
section 17(1)
of the
Road Accident Fund
Act
56 of 1996
,
RAF is obliged to compensate a person for loss or damage suffered
because of a bodily injury caused by or arising from the driving
of a
motor vehicle. RAF’s liability is conditional, however, upon
the injury having resulted from the negligence or wrongful
act of the
driver. This means that a person such as the Plaintiff is
required to prove such negligence.
[30]
The Plaintiff was a child of ten years old,
when the accident occurred. There can be no negligence attributed to
the Plaintiff,
as the Plaintiff was a passenger, in a donkey cart and
the accident occurred during the day.
[31]
The basic principle that applies in civil
matters, is discussed in Schwikkard PJ (et al),
Principles
of Evidence
, where the learned writer
observed that:
‘
In
civil cases the burden of proof is discharged as a matter of
probability. The standard is often expressed as requiring proof
on a
“balance of probabilities” but that should not be
understood as requiring that the probabilities should do no
more than
favour one party in preference to the other. What is required is that
the probabilities in the case be such that, on
a preponderance, it is
probable that the particular state of affairs existed’.
[2]
[32]
Onus
was addressed in the case of
National
Employers’ General Insurance Co Ltd v Jagers
[1984] 4 All
SA 622
(E)
,
where Eksteen AJP, for a full bench, held as follows:
[3]
‘…
in
any civil case, as in any criminal case, the onus can ordinarily only
be discharged by adducing credible evidence to support
the case of
the party on whom the onus rests. In a civil case the onus is
obviously not as heavy as in a criminal case, but nevertheless
where
the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can only
succeed if he
satisfies the Court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable,
and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether
that evidence
is true or not the Court will weigh up and test the plaintiff’s
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities
of the case and, if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably
true. If, however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff’s
case any more
than they do the defendant’s, the plaintiff can
only succeed if the Court nevertheless believes him and is satisfied
that
his evidence is true and that the defendant’s version is
false.’
[33]
In
Dippenaar
v Shield Insurance Co Ltd
1979
(2) SA 904
(A0)
it
was
accepted
that earning capacity may constitute an asset in a person's
patrimonial estate
and
the loss or impairment of that capacity constitutes a loss if such
loss diminishes the estate
.
If loss of earnings is proven the loss may be compensated if it is
quantifiable as a diminution in the estate's value. A physical
disability which impacts the capacity to earn income does not, on its
own, reduce the patrimony of an injured person. It is incumbent
on
the Plaintiff to prove that the reduction of the income earning
capacity will result in actual loss of income.
[34]
In
Prinsloo
v Road Accident Fund (3579/06)
[2008] ZAECHC 193
at para 5 thereof, it was held that ‘
[A]
person’s all-round capacity to earn money consists inter
alia, of an individual’s talents, skill including
his/her
present position and plans for the future and of course external
factors over which a person has no control for instance,
in casu,
considerations of equity. A court has to construct and compare two
hypothetical models of the plaintiff’s earnings
after the date
on which he/she sustained the injury. In casu, the court must
calculate on the one hand, the total present
monetary value of all
that the plaintiff would have been capable of bringing into her
patrimony had she not been injured, and,
on the other, the total
present monetary value of all that the plaintiff would be able to
bring into her patrimony whilst handicapped
by her injury. When the
two hypothetical totals have been compared, the shortfall in value
(if any) is the extent of the patrimonial
loss.’
[35]
I have grave concerns to accept the
industrial psychologist and actuary’s reports without
reservations. If regard is given
to the Plaintiff’s family
background, what has been achieved by his parents and three older
siblings and their home environment
conditions, it must be accepted
that pre-morbid the Plaintiff is being pitched at an extremely high
level. There are no records
relating to the Plaintiff’s
pre-school, grade R or grade 1 scholastic performance, predating the
accident in question.
In addition, I find it improbable that
the Plaintiff could have been ten years old, in grade 2, without him
having struggled academically.
If it is accepted that the Plaintiff
was enrolled in school at a later age, then the question must be
asked: why? The only inference
I can draw is that the Plaintiff
already suffered from concentration and forgetfulness before the
accident.
[36]
Consequently,
a high contingency must be applied if I accept the figures stated in
the actuary report.
The
percentage of the contingency deduction depends upon many factors and
ranges between 5% and 50%, depending on the facts of the
case.
[4]
[37]
The
importance of applying actuarial calculations and its advantages was
discussed in the case of
Southern
Insurance Association v Bailey N.
[5]
The court referred with approval to the case
of
Hersman
v Shapiro and Company,
[6]
where
the following was said:
‘
Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is little more than
an estimate; but even so, if it is certain that
pecuniary damage has
been suffered, the Court is bound to award damages.
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.
It
has open to it two possible approaches.
One
is for the Judge to make a round estimate of an amount which seems to
him to be fair and reasonable. That is entirely a matter
of
guesswork, a blind plunge into the unknown.
The
other is to try to make an assessment, by way of mathematical
calculations, on the basis of assumptions resting on the evidence.
The validity of this approach depends of course upon the soundness of
the assumptions, and these may vary from the strongly probable
to the
speculative.
It
is manifest that either approach involves guesswork to a greater or
lesser extent. But the Court cannot for this reason adopt
a non
possumus attitude and make no award.’
[38]
In the result, I have
applied a 50% contingency deduction to the pre-morbid earnings and a
50% contingency for post-morbid.
I
am satisfied that the contingency deduction in respect of both
pre-morbid and post-morbid income would be just and fair, taking
into
consideration all the evidence placed before me.
[39]
The calculations are
as follows:
Income if the accident
did not occur:
Past
- R0
Future
-
R10
653 340
R10
653 340
Less 50%
R5 326 670
Amount:
R5 326 670
Income post-accident:
Past
- R88 582
Future
-
R1
616 251
R1 527
669
Less 50%
R763 834.50
Amount:
R763 834.50
[40]
The
nett loss of earnings is R5 326 670 – R763 834.50 = R4 562
835.50. The balance of probabilities favours awarding
compensation to the Plaintiff for loss of income in the amount of R4
562 835.50.
[41]
Before concluding,
something must be said about the inadequate way the RAF is litigating
to the detriment of tax-abiding citizens.
RAF pays billions of
rands each year
in
road accident claims. These claims could be drastically reduced if
not for the delinquent manner in which third-party claims
are dealt
with.
[42]
In Modise obo Minor v Road Accident
Fund (10329/2019) [2019] ZAGPPHC399
,
at para 3.1, Davids J expressed his dissatisfaction with the Road
Accident Fund, in circumstances such as the case before me,
where it
is clear that the Plaintiff suffered prejudice, and will continue to
suffer prejudice, due to their failure to provide
the Plaintiff will
an undertaking, as provided for in section 17(4)(a) of the RAF Act,
as soon as litigation commences.
[43]
As
stated in the
Modise
case, ‘
This
will not only benefit the injured person and fulfill some of the
objects of the Act, but it will also enable a plaintiff to
begin to
satisfy the general onus of mitigating one's Damages.
[7]
In
that way, not only will plaintiffs and injured persons experience
beneficial relief in respect of their compromised or
diminished
amenities of life, but they might be assisted on the road to
recovery, be it by way of surgical or scar-removing procedures,
or
psychiatric or remedial educational therapy, to name but a few
examples’.
‘
What
the RAF also apparently and persistently fails to appreciate, is that
every medical or ancillary intervention rendered pursuant
to the
furnishing of an undertaking might have a downward impact on the
eventual quantum to be awarded. Scarring can be removed,
orthopeadic
remedial surgery can take place, a minor might be assisted in
reaching his pre-accident learning potential and the
like. An injured
person might be rehabilitated or re-trained so as to enable him to
compete better in the labour market. This all
might result in a
reduction of the eventual award for damages including, in appropriate
circumstances, even general damages. It
is a matter of public record
that the RAF is insolvent and has been for many years. The failure to
take such a simple step as the
furnishing of an undertaking in terms
of section 17(4)(a) of the Act amounts to a dereliction of duty. In
this instance, as I have
already mentioned, that dereliction
prejudiced a minor child, a representative of one of the most
vulnerable segments of our society.’
[44]
The Plaintiff’s anger outbursts,
concentration and forgetfulness, are all treatable through therapy
and appropriate medicine.
Summons were issued on 13 February
2018, and the RAF filed its plea in June 2018. From June 2018
to 09 October 2023, the
RAF failed to provide the Plaintiff with an
undertaking in section 17(4)(a) of the Act. They only did so on 09
October 2023. If
they had done so sooner, the Plaintiff’s claim
for loss of income could have been significantly reduced.
[45]
There is no reason why costs should not
follow the result.
Accordingly, I make the
following order:
ORDER:
[46]
The merits are settled at 100% in favour of
the Plaintiff.
[47]
The Defendant shall
pay to the Plaintiff the total capital amount of R4 562 835.50 (four
million, five hundred and sixty-two thousand,
eight hundred and
thirty-five rand and fifty cents) in respect of loss of earnings or
earning capacity, together with interest
at 10.5% per annum from 20
February 2018, being the date of service of the summons.
[48]
The
Defendant shall furnish the Plaintiff with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
in respect
of future medical, hospital and related expenses.
[49]
The Defendant is
ordered to pay the Plaintiff's agreed or taxed costs on a party and
party scale.
[50]
The Plaintiff shall
allow the Defendant 14 (fourteen) days to make payment of the taxed
costs.
______________________
C MARAIS
ACTING JUDGE OF THE
HIGH COURT
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time for
hand-down is deemed to be 16h00 on _________ 2024.
DATE OF
HEARING:
09 October 2023.
DATE JUDGMENT
DELIVERED:
________________ 2024.
APPEARANCES
:
Counsel for the
Plaintiff:
Adv P Magagane
Attorney for the
Plaintiff:
HE Hloka Attorneys Inc
Email
Address:
info@mehlokaattorneys.co.za
Counsel for the
Defendant:
-
Attorney for the
Defendant:
-
Email
Address:
-
[1]
On
07 July 2023 Plaintiff filed an intention to amend its particulars
of claim, in terms of rule 28 of the Uniform Rules of Court,
however
Plaintiff failed to file the amended pages.
[2]
See:
4
th
Ed,
2016, ch32-p 628
[3]
At
624-5.
[4]
See AA
Mutual Association Ltd v Maqula 1978(1) SA 805 (A) 812
[5]
1984
(1) SA 98
(AD)
[6]
1926
TPD 367
.
[7]
See: Hazis
v Transvaal & Delagoa Bay Investment Co Ltd 1939 AS 372 as
quoted in Visser & Potgieter Law
of Damages through the cases at [24]
and referred to in Swart v Provincial Insurance co
Ltd
1963 (2) SA 630(A).