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2024
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[2024] ZAFSHC 161
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Mbele v Road Accident Fund (5788/2017) [2024] ZAFSHC 161 (16 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number:
5788/2017
In
the matter between:
BABA
MAX MBHELE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
LOUBSER,
J
HEARD
ON:
14 & 16 FEBRUARY
2024
JUDGMENT
BY:
LOUBSER,
J
DELIVERED
ON:
16 MAY 2024
[1]
The Plaintiff
in this matter initially claimed a total amount of R3 111 147.00
damages from the Department, arising from a motor
vehicle accident
which occurred on the road between Kestell and Bethlehem on 10
September 2015. The Plaintiff was a passenger in
one of the vehicles,
and he sustained serious injuries in the accident. He suffered a
fracture of the left hip, deep abrasions
on the left side of the
forehead and the left cheek, as well as a deep laceration on the left
forearm. The summons against the
Defendant was issued as far back as
8 November 2017.
[2]
In
its Plea the Defendant denied any liability on the basis that it had
no knowledge of the averments made in the summons, but it
pleaded in
the alternative that the amount claimed be reduced in terms of the
provisions of the Apportionment of Damages Act.
[1]
[3]
On 4 December
2018 this Court made an order by agreement between the parties that
the issues of merits and quantum are separated,
and that the
Defendant is liable to pay 100 percent of the Plaintiff's proven or
agreed damages. The Court further ordered
that
the Defendant
shall furnish the Plaintiff with an undertaking pertaining, inter
alia, to future treatment of the Plaintiff in terms
of Section
17(4)(a) of Act 56 of 1996.
[4]
The result
hereof was that this Court was only called upon to determine the
issues of general damages and the Plaintiff's claim
for loss of
earning capacity when the matter went on trial. The Plaintiff himself
testified in the hearing, and thereafter an occupational
therapist,
an industrial psychologist and an orthopaedic surgeon testified in
support of his claim. In addition, the reports and
confirming
affidavits of a plastic and reconstructive surgeon, a clinical
psychologist and an actuary were handed in by counsel
appearing for
the Plaintiff in terms of the provisions of Rule 38, without any
objection on behalf of the Defendant.
[5]
The Defendant
did not present any evidence at all, including any expert evidence.
To make matters worse for the Defendant, none
of the witnesses were
cross examined by its legal representative, and no submissions
in
respect
thereof were
made on its behalf towards the end of the hearing. The evidence
presented on behalf of the Plaintiff, and indeed his
whole claim,
therefore became virtually unopposed during the course of the trial.
[6]
Responding to
questions by the Court in this regard, the legal representative of
the Defendant explain that she could not participate
in the
proceedings in a meaningful way because she was unable to obtain any
instructions from the Defendant despite her many efforts
to obtain
same. This failure of the Defendant
to
provide clear instructions is lamentable and deserves to be frowned
upon, because if the Defendant was not interested in contesting
the
expert evidence and the claim as a whole, it should have settled the
claim without further ado. Instead, the Defendant chose
to sit back
and to cause the Court the inconvenience of an unnecessary hearing
for one full day.
[7]
Be it as it
may, nothing presented by the Plaintiff in the form of evidence now
remains in dispute, and it is not necessary to deal
with that
evidence in any detail. Suffice it to only provide a summary of the
expert evidence pertaining to the present situation
of the Plaintiff,
as confirmed by the Plaintiff himself.
[8]
The Plaintiff
testified that he was 25 years old at the time of the accident. He
passed grade 12, and he has no further qualifications.
The hip-injury
he sustained in the accident
,
was the
serious one. He was hospitalized for two weeks, whereafter he was
discharged with pain medication and crutches, which he
used for three
weeks. At the time of the accident, he was employed as a
forklift-driver. After the accident, he suffered acute
pain for some
2 -
3
weeks after his discharge from the hospital. He eventually went back
to work, but he soon found that he could not properly resume
his
duties as a forklift-driver
,
because of the
pain he experienced. In April 2022 he realized that he could not
continue with his work
,
because of the
pain he suffered when he had to load the forklift with the heavy
loads that had to be placed on the trucks. Because
of the constant
pain he suffered at work, he decided to resign
.
Even when
testifying, he stood up from time to time because of the pain he felt
sitting in the witness stand. Before the accident
he used to play
soccer and to train in the gym, but he cannot do so anymore
.
When he puts
weight on the injured hip, the pain increases. He has visible scars
on the hip, he testified.
[9]
The expert
evidence presented for the Plaintiff, mainly corroborates his own
evidence pertaining to his condition
.
As already
intimated
,
this evidence
stands uncontested before the Court. A cumulative analysis of all the
expert evidence shows that the Plaintiff was
diagnosed with a left
ancetabulum fracture followed by painful instrumentation, visible
scarring and a chronic painful hip joint.
He has a 90% probability of
his left hip degenerating to end stage osteoarthritis. This hip
injury will be
permanent, and the Plaintiff can only be placed in a permanent light
duty working environment. The scarring on the
hip is also permanent
and will always be visible.
[10]
In addition,
the Plaintiff is suffering from psycho-social difficulties which are
likely to have a negative impact on his efficiency,
motivation and
occupational relationships. It can be said that the Plaintiff would
never again be suited to even do occasional
medium work. He is
therefore disadvantaged in the competitive workplace with regard to
efficiency and effectiveness in comparison
with injured peers. In
addition to the sequelae of his injuries and the enduring pain, he
has suffered a loss of emotional stability,
loss pf employability,
and a loss of independence and enjoyment of life. The Plaintiff only
has a less than 10% chance of being
employed in the future, and he
will most probably remain unemployed in the open labour market due to
his limited skills.
[11]
Relying on
these findings by the experts, the actuary provided the Court with
two different calculations in determining the Plaintiff's
loss of
earning capacity. The first calculation is based on the assumption
that the Plaintiff is unemployable in the future. In
this calculation
the actuary applied a 5% contingency deduction for the past loss of
earnings and a 10% contingency deduction for
the future loss of
earnings, which amounts to nil income
.
In the second
calculation, it is assumed that the Plaintiff would earn an unskilled
worker income in the future. Having regard to
the evidence that it is
more probable that the Plaintiff would not be able to find employment
again, the first calculation must
prevail. In that calculation, the
contingency deduction of 5% applied with regards to the past loss of
income, cannot be questioned
in view thereof that such a deduction is
normally applied in most cases where the past loss of earnings
becomes relevant.
[12]
In the first calculation, the Plaintiff's total loss of earnings is
indicated in the amount of R3 136 154.00.
This is then the amount
that
shall
be awarded to the Plaintiff for loss of earning capacity
.
[13]
A for general damages, it is trite that the Court has a broad
discretion to award what it considers to be
fair and adequate
compensation.
The
Court will generally be guided by awards previously made in
comparable cases and will be alive to the tendency for awards to
be
higher in recent years than was previously the case
.
The
basic rule is that the award should be fair to both sides, it must
give just compensation to the plaintiff, but not "pour
largesse
from the horn of plenty" at the defendant's expense
.
[2]
[14]
Mr.
Sander,
who
appeared
for
the
Plaintiff,
suggested
that
an
amount
of R800 000.00
be awarded for general damages. He referred the Court to a number of
comparable cases where general damages were
awarded in amounts
ranging from R628 000.00 to R864 000.00
.
I am of the
view that, having regard to the facts of the present matter, an
amount of R700 000
.
00
would be fair and just compensation for the Plaintiffs general
damages.
[15]
Mr
.
Sander has
presented the Court with a draft order, which I intend making an
order of Court accordingly, with the necessary amendments
thereto.
[16]
The following
order is made
:
1.
The
Defendant
shall
pay
the
Plaintiff
the
sum
of
R
3 836
154,00
(THREE
MILLION
EIGHT
HUNDRED
AND
THIRTY-SIX
THOUSAND
ONE
HUNDRED AND FIFTY-FOUR RAND)
in
respect of loss of earning capacity and general damages, set out as
follows:
General
Damages:
R
700 000,00
Loss
of Earnings:
R
3 136 154,00
Total
:
R
3 836 154,00
2.
The
Defendant
shall
pay
the
abovementioned
amount
into
the
Plaintiff's
Attorneys
trust account.
The
P
l
aintiffs
Attorney's trust account details are as follows:
ACCOUNT
HOLDER:
VZLR
INC
BRANCH:
ABSA
BUSINESS BANK HILLCREST
BRANCH
CODE:
632005
TYPE
OF ACCOUNT:
TRUST
ACCOUNT
ACCOUNT
NUMBER:
301[…]
REFERENCE:
MAT104059
3.
In the event
of default on the costs payment, interest shall accrue on such
outstanding amount at the statutory mora rate on the
date of taxation
/ settlement of the bill of cost, as per the
Prescribed Rate of
Interest Act, 55 of 1975
, as amended, per annum, calculated from due
date until the date of payment.
4.
In the event
that
the
Defendant does
not, within 180 (one hundred and eighty) days from the date on which
this order is handed down, make payment of the
capital amount, the
Defendant will be liable for payment of interest on such amount at
11,75% (the statutory rate per annum) compounded
and calculated
fourteen days from date of this order.
5.
The Defendant
to pay the Plaintiff's taxed or agreed party and party cost, up to
and
including
the date of 16
February 2024.
6.
The Defendant
to pay the reasonable qualification fees of all the Plaintiff's
experts whose reports had been furnished to the Defendant
and/ or its
experts:
6.1
Dr MB
Deacon
Orthopaedic
Surgeon
6.2
Dr D
Hoffmann
Plastic
& Reconstructive Surgeon
6.3
Ms Claire
Hearne
Clinical
Psychologist
6.4
Ms Lucindy
van Zyl
Rita
van Biljon Occupational Therapist
6.5
Dr AC
Strydom
Industrial
Psychologist
6.6
Mr J Sauer
Actuary
7.
The reasonable
taxable reservation, qualification and attendance fees at Court for
the following experts:
Dr
MB Deacon – ;Orthopaedic Surgeon - 14 February 2024
Lucindy
van Zyl – ;Occupational Therapist - 14 February 2024
Dr
AC Strydom -;Industrial Psychologist - 14 February 2024
8.
Cost of
Counsel, including the costs of drafting and settling settlement
submissions to the Defendant as well as heads of argument
that were
submitted to the Court on 16 February 2024.
In
the event that cost is not agreed, the parties agree as follows
:
9.
The Plaintiff
shall serve a notice of taxation on the Defendant's attorney of
record;
10.
The Plaintiff
shall allow the Defendant fourteen court days to make payment of the
taxed cost.
P.
J. LOUBSER, J
For
the Plaintiff:
Adv
.
A. Sander
Instructed
by:
VZLR
Inc. Pretoria
c/o
VZLR Inc. Bloemfontein
For
the Defendant:
Me.
M. Booysen
Instructed
by:
Office
of the State Attorney
Bloemfontein
/roosthuizen
[1]
Act
34 of 1956
[2]
De
Jongh v Du Pisane N.O.
2005 (5) SA 457
(SCA) at par. 60