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[2024] ZALMPPHC 56
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Phala v Road Accident Fund (7712/2020) [2024] ZALMPPHC 56 (23 May 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO:7712/2020
(1)
REPORTABLE: NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED
DATE:
23 – 05 – 2024
SIGNATURE
In the matter between:
JOSHUA LEKGOWA
PHALA
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGEMENT
MASHAMBA
AJ:
[1]
The Plaintiff
has
instituted
an
action
against
the
Road Accident
Fund ("Defendant") for damages resulting
from personal injuries he has sustained as a passenger in a motor
vehicle accident
Isuzu KB with registration numbers […] there
and then driven by one Sello Samuel Rasehlo which vehicle collided
with another
motor vehicle with registration number […] there
and then driven by the insured driver Disego Reuben Modiba at
Ga-Chuene
along the R37 public road to
Polokwane on or about the 28th
November
2017.
[2]
The Plaintiff was 22 years old when the accident
occurred and currently 29 years old, unemployed.
[3]
On the 11th
October
2021, the Madam Justice Semenya DJP granted an order in terms of
which the Defendant was found liable for the plaintiffs
proven
damages to the extent of 100%, whilst the issue of quantum of damages
suffered was postponed
sine die.
ISSUE BEFORE THIS COURT
[3]
The Court is called to determine the Plaintiff's
claim for general damages, past, future medical expenses and past,
future loss
of earning.
[4]
The
Plaintiff
claimed
an
estimated
amount
of
R
10
431 250.00
calculated as follows;
4.1
Past medical Expenses
R 250 000,00
4.2
Future Medical Expenses
R 300 000,00
4.3
Past Loss of
Income
R 92 175,00
4.4
Future Loss of
Income
R 8 789 075,00
4.5
Non-pecuniary
Loss
R 1 000 000.00
[5]
The Future Medical Expenses claim will be
substituted with an undertaking certificate in terms of
section 17
(4) (a)-(b) of the
Road Accident Fund Act 56 of 1996
, as amended.
[6]
The
summons
against
the
Defendant
was
issued
on
the
09
th
December 2020, and served by sheriff on the 21
January 2021, at the Defendant principal place of business. The
Defendant did not
enter his appearance to defend as required.
[8]
The Plaintiff proceeded with their submissions on
the absence of the Defendant, The Plaintiff used the experts' medical
reports
to substantiate his claim. The Plaintiff relied on the
following expert reports;
8.1
Dr PT Kumberai (Orthopaedic Surgeon)
8.2
Dr KA Tseka (Neurosurgeon)
8.3
Dr RK MARINGA
(ENT
Specialist)
8.4
VP CLOETE (Educational Psychologist)
8.5
A Swanepoel
(Psychotherapy
& Counselling)
8.6
NJ Mabote (Occupational Therapist)
8.7
S Mkabile (Industrial Psychologist)
8.8. Robert J Koch
(Actuaries)
[9]
The
Defendant did not defend the matter and the Plaintiff proceeded with
his submissions
based
on
the
conclusions
of the
medical
experts
reports
duly
filed
before
the
Court.
The
Court
evaluated
the
probabilities
of
all
experts'
evidence.
In
Prince
v
Road
Accident
Fund
[1]
,
the
Court
held
at
paragraphs
55, 56
and
59
in the evaluation of the probabilities in respect of expert evidence.
"[55]
Sufficient proof
is
established when an inference can be
drawn about the fact in
issue,
providing
that
the
inference
is
consistent
with
all
the
proven
facts.
In
civil matters, it suffices if the inference
is
the
most
probable inference.
[56]
Further, once prima facie proof or evidence
has
been provided, that
is
proof calling for an answer. This
becomes conclusive proof on the point in
issue
usually if
no
evidence
is
produced
to rebut
it.
The fact of
the matter
is,
however,
that
the Court
must
at the end
of the
case
review
all
the evidence and evaluate this according to the applicable primary
criterion.
[59}
It must be accepted, of course, that where, for example,
a
Defendant fails to produce evidence,
this does not mean necessarily
that
the opponent's version in the
case,
falls
to
be accepted.
The
acceptance
of
Plaintiff's
case
depends on
the
probative
strength
of
Plaintiff's
case,
being
whether
it
is
sufficient
to
cast,
an
evidential burden on the Defendant to present evidence.
"
PLAINTIFF'S INJURIES AND
EVIDENCE
[10]
The
medical records from Polokwane Provincial Hospital show that
the
Plaintiff
had
the
following
injuries;
laceration
on
the
base
of the
nose
and
abrasion of
the
fore
head. The Plaintiff
was
admitted
on the
28 November 2017 at 08h55 and discharged the same date, at 10h55.
[2]
[11]
The Plaintiff gave
viva
voce
evidence, and confirmed that he
was a passenger at the motor vehicle referred above which occurred on
the 28 November 2017. The
Plaintiff proceeded
to
say
that as a result
of
the unbearable
chest pain, he cannot do any
type of work to earn a living.
[12]
Dr PT Kumberai (Orthpaedic
surgeon), examined the Plaintiff on the 21 July
2020,
and
recorded
injuries
sustained
as
laceration
to
forehead and nose.
The
Plaintiff
reported
painful
Knee
to the Orthopaedic
surgeon. The knee was examined and it was found that there is no
deformity
noted, and that the knee had a
full range of motion without a pain and neurovascularly was intact.
The Orthopaedic surgeon opined
that it is difficult to ascertain
internal derangement of the left knee. The Plaintiff
was
referred
to
Ors
Mkhabele
and
lndunah
Radiologist
on
the 21
July
2020,
and
the
result
show
no
bone
pathology.
These
clinical and
radiologist
findings
=0
LEI
(Class
0)
=
0
WPI.
No
significant negative orthopaedic effect foreseen.
[13]
Dr KA
Tseka, (Neurologist) examined the Plaintiff on the 03 April 2021, the
Plaintiff sustained a head injury. The Plaintiff reported
that he has
headache which is throbbing in character and graded 6/10. The
Neurologist associated with photophobia and phonophobia.
The
neurologist opined that the Plaintiff injuries' sequelae is mild
concussion and 4% WPl.
[3]
[14]
Dr RK
Maringa, (ENT specialist) has examined the Plaintiff on the 9th
June
2021, He assessed the Cranial nerves and found left
Vestibulocochlear, nerve fallout. The ENT concluded that the
Plaintiff
sustained head injuries with loss of hearing. The ENT
concluded that the Plaintiff needs hearing aids
[4]
.
[15]
VP
Cloete,
(Educational
Psychologist) has examined the Plaintiff on the 6 April 2022. The
Plaintiff reported that pre -accident, he repeated
grade 3,7 and 10.
The Plaintiff failed grade 11 in 2017, and dropped out in 2018, as a
result of memory loss, painful left knee
and that he was demotivated.
When considering the pre-cognitive functioning of the Plaintiff,
there were no indicators of ill health
or development
delay.
The Educational Psychologist opined that pre accident
repeated
grades could be an indicator that the Plaintiff might had undiagnosed
learning difficulties. The Educational Psychologist
further opined
that based on the information on hand the Plaintiff would most
probably a child of at least average intelligence
with
the ability to pass grade 12 and probably ability to persue tertiary
studies if he had received the necessary support and interventions
for his undiagnosed learning difficulties.
[5]
The
Educational Psychologist further opined that the Plaintiffs cognitive
functioning post-accident is compromised as he dropped
out of school
in 2018.
[16]
Swanepoel (Psychotherapy), examined the Plaintiff
on the 18 May 2022, and opined that based on the Plaintiff
performance
on certain task, still trying
to
use his
left
leg for abilities
which
will suit
his
condition. The Plaintiff short term memory
conditions are making his abilities much lower as compared to others.
Swanepoel opined
that the Plaintiff supposed to go for X RAY of his
chest, head and left knee. Swanepoel
further
opined that the Plaintiff must see another neurologist for second
opinion. Swanepoel opine that the Plaintiff display no
self-esteem or
maladaptive behaviours and that his behaviours do affect his
functioning in the society environment or very negatively
impacted on
his normal living.
17]
NJ Mabote (Occupational Therapist), examined
the Plaintiff on the 04th August 2021, who opined that
the Plaintiff
sustained soft tissue injuries to the left knee and left chest wall.
Knee pain is triggered by joint flexion, standing
on the left leg.
Climbing and squatting triggers left knee stability which affect
static balance on the left leg. The Plaintiff
could not lift more
than13.6 kg with the left hand due to reported left knee and chest
pain. The Plaintiff has poor standing endurance
and functional
sitting endurance, his performance
with
regards to problem
solving
was
below average, especially with concrete functional planning skill.
[6]
The
Plaintiff physical and cognitive impairments render him incapacitated
to perform most occupations.
[7]
THE PLAINTIFF LOSS OF
EARNING
[18]
S Mkabile (Industrial Psychologist), examined the
Plaintiff on the 17 November
2021, noted
that the Plaintiff obtained C1 driving license in 2016. The accident
occurred on the 28 November 2017(after completing
his grade 11 final
examinations). The Plaintiff reported that in 2018 he returned back
to school, however, dropped out due to accident
injuries. The
Plaintiff reported that he worked as a taxi driver for a week,
thereafter, resigned due to not coping with his work
demand due to
accident-related challenges. He remained unemployed.
[19]
Mkabile
(Industrial Psychologist), postulated the Plaintiff earnings on pre
accident
Scenario
1,
certificate
(NQF level 5). The Industrial Psychologist opined that after the
completion of matric probably in 2019/2020, the Plaintiff
could have
enrolled for a certificate of his choice and that upon the completion
probably in 2021/2022 it could have taken him
twelve (12) months to
do learnership in which the Plaintiff could earn R 99 938 per year.
Then after completing his learnership,
it could have taken the
Plaintiff at least 0-12 months to secure employment which is in line
with his qualification. In this regard,
the Plaintiff is likely to
have started earning between lower and upper quartile Paterson level
B3.
[8]
With experience, better
employment opportunities and promotional prospects, the Plaintiff is
likely to have progressed and reached
his ultimate earning level at
the upper quartile Paterson Level C2 (total package) when he reached
45 years with applicable inflationary
increase.
[20]
The
Industrial Psychologist,
Scenario
2,
National
Diploma (NQF Level 6), It was opined that after completion of matric,
probably in 2019/2020, the Plaintiff
could
have enrolled for a Diploma
of
his choice.
Upon
completion
of his Diploma
probably
in
2022/23,
it
could
have taken him about 12 months to do learnership
in
which
he
could
have
earned R
99
938 per year. Then after completing his learnership, it could have
taken him at least 0-06 months to secure employment
which
is in line with his qualification. In this regard, it is likely to
have started earning between lower and upper quartile of
Paterson B4,
with experience, better employment opportunities and promotional
prospects, the Plaintiff is likely to have progressed
and reached his
ultimate earning level at the upper quartile of Paterson Level C4
(total package)
when
he reached 45 years with applicable inflationary increases.
[9]
[21]
The Industrial Psychologist, opined that the
accident, rendered that
Plaintiff an
unequal competitor for the gainful employment as well as much more
vulnerable employee having to compete with well-bodied
individuals
for employment.
The Industrial
Psychologist, further opined that, the Plaintiff is currently
unemployed, and it is beyond reasonable
doubt
that this accident in question has rendered the Plaintiff practical
unemployable in the open labour market and this will constitute
total
loss of future earnings.
[22]
This
leads me
to
the issues
of
the award
for
the
future
loss
of earning capacity and contingencies to be applied. In
this
regard I am also guided by
Mngomezulu
v
RAF
[10]
,
where
Kgomo
J
argued that:
''[84]
For the Plaintiff
to
succeed in
a
claim
for
loss of
earnings, he
is
required
to
provide
a
factual basis for an actuarial
calculation. This
is a
process
designed
to
assess
actuarial/mathematical
calculations
on
the basis of the evidence
as
well
as
over-all assumptions vesting or
depending
on
such
evidence. This approach is known
as
the
actuarial approach.
[85]
The actuarial
approach
seeks
to
determine
the
loss of earnings
as
realistically
as
possible
to
what
may be the Plaintiff's actual
losses.
The approach
comprises
of
(a) providing
a
factual
basis
upon which the
loss
of
earning
is
to
be calculated and only then (b) by applying appropriate contingency
deductions.
"
[23]
The Plaintiff submitted that 35% contingency
deductions will
be reasonable considering
the Plaintiff's age, qualifications and that the discretion of the
Court should be accepted.
[24]
The Court finds that injuries in the medical
records are not identical with the injuries reported in various
medical reports. The
Plaintiff reported knee injury to the
orthopaedic surgeon, but such was not recorded in the medical
records. The Plaintiff reported
chest pain with the Occupational
Therapist but the same was not on the records. The Plaintiff reported
that he became unconscious
when the
accident occurred but such information was not documented in the
medical records. A Swanepoel, a Psychotherapy opined that
the
Plaintiff should be reexamined by neurologist and the findings of the
Psychotherapist was not conclusive and such evidence
did not help the
court.
[25]
The nexus between
the
injuries
recorded
in
the medical records
and other injuries
reported by the Plaintiff in various experts were not succinct.
The extent of neurological
impairment was not precise from the
reports.
The Court noted that it has taken
approximately, two (2) years nine (9) month before the Plaintiff
was assessed by the orthopaedic surgeon. The Court
further noted that other medical experts assessed
the
Plaintiff
after
three
(3)
years
post-accident.
So, the Court is not satisfied that all injuries reported are motor
vehicle accident related.
[26]
I deliberately
highlighted
the above inconsistences in para 24 and 25 supra in order to
demonstrate issues I have taken in to account when deciding
a
reasonable compensation
for the Plaintiff
damages as a result of the motor vehicle accident in question.
[27]
The Court find that pre accident the Plaintiff had
some learning challenges
and
that
it
will
not
be
reasonable
to
suggest
that
the
Plaintiffs' drop out from school was entirely due
to the motor vehicle accident-related injuries. The Plaintiff
repeated four (4)
Grades before the accident so this indicates that
pre-accident the Plaintiff had challenges as opined by the
Educational Psychologist.
In my view, the accident might have
contributed slightly to the dropout from school but the Plaintiff had
a serious learning challenges
pre-accident. The accident happened
after the 2017 final examinations
but the
Plaintiff yet failed grade 11 and thus was not as a result of the
accident.
[28]
When dealing with the issues of future loss of
earning and General damages I took note of all discrepancies I found
from the medical
experts reports. I find that the Plaintiff pre
morbid and post morbid future earnings capacity
are
equal.
The
Court
shall
compensate
the
Plaintiffs
future
loss
of
earnings by applying a spread contingency method of 10 %. In
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) Nicholas JA stated as
follows at 116 G -
117 A:
"Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is "tied down by inexorable
actuarial
calculations". He has
"a
large discretion to award what he
considers right"
.........
One
of the elements in exercising that discretion is the making of
a
discount for "contingencies"
or the "vicissitudes of life".
These
include
such
matters
as
the
possibility
that
the
Plaintiff
may
in the result have less than
a
"normal" expectation of life;
and that he may experience periods of unemployment by reason of
incapacity due to illness
or accident, or to labour unrest or general
economic conditions. The amount of any discount may vary, depending
upon the circumstances
of the case."
[29]
The Plaintiff appointed Robert J Koch Actuaries to
calculate the Plaintiff's loss of income based on the Industrial
Psychologist
report. The Court is going to
concentrate on the scenario 1 of the actuarial calculations.
[30]
I therefore
find that
the following contingencies
should apply:
SCENARIO 1:
Pre-morbid Earnings
(had the accident not occurred)
Future loss of earnings
R 9 606 430,00
Less
contingency
15 %
R - 1 440 964,50
Total Pre-morbid
Earnings
R
8 165 465,50
Post-morbid Earnings
(having regard to the accident)
Future loss of earnings
R 9 606 430,00
Less
contingency
25%
R -2 401 607,50
Total Post-morbid
Earnings
R 7 204 822,50
Pre-morbid earnings
minus post-morbid earnings
R 8
165 465,50
-
R
7 204 822,50
=
R
960 643,00
TOTAL LOSS OF
EARNINGS
R 960 643,00
[31]
In the circumstances, I find that the appropriate
amount to be awarded to the Plaintiff in respect
of the future loss of earnings capacity is in the sum of R
960
643,00
GENERAL DAMAGES:
[32]
In
dealing
with
general
damages,
I
considered
the
order
granted
on
the
281h
July
2023 by the learned brother Judge Kganyago, and in brief the order
compelled the Defendant
to within 10 (ten)
days from the date of service
of the Court
Order to indicate that the Plaintiff injuries had
been correctly
assessed
as
serious
as per the RAF 4
form
by Dr Tseka.
The Court
Order
required
the Defendant
to exercise
his rights
in terms of regulation 3(3)(d) to reject or direct the Plaintiff for
assessment
by designated medical
practitioner
of his choice. The Court Order
further indicates that if the Defendant fails within 10 (ten) days
from the date the Defendant
received the
Court Order the Plaintiff will be deemed to have qualified for
general damages. The above Court Order was served to
the Defendant
Menlyn office on the 08 September 2023. The Defendant
did
not comply with the Court Order, instead Defendant is mute. The Court
Order
was not varied nor rescinded
in terms
of Rule 42, of
the Uniform Rules of the High Courts. This Court proceeded to
adjudicate on the issues of the general damages.
[33]
Moseneke
DCJ in
Van
der Merwe v Road Accident Fund and Another
[11]
stated
that,
non-patrimonial
damages, which also bear the name of general damages, are utilized to
redress the deterioration of a highly personal
legal interests that
attach to the body and personality of the claimant. However,
ordinarily the breach of
a
personal
legal interest
does
not reduce
the
individual's
estate
and
does
not
have
a
readily
determinable
or direct
monetary
value.
Therefore,
general
damages
are,
so
to
speak,
illiquid
and
are
not
instantly
sounding
in
money.
They
are
not susceptible
to
exact or immediate calculation in monetary terms. In other words,
there
is
no
real relationship between the money and the
loss.
In
bodily injury claims, well-established variants of general damages
include "pain and suffering", "disfigurement",
and
"loss
of
amenities of life.
"
[12]
[34]
The Plaintiff submitted that the amount of R 1 000
000.00 (ONE MILLION) is fair and reasonable to compensate the
Plaintiff. The
Plaintiff referred the Court in the unreported case of
Mguni v Road Accident fund
(810/2005
North Gauteng) a 39-year-old suffered a brain injury and experienced
headache, pain in the neck, shoulder, knee and ankle.
He suffered
memory, concentration and attention difficulties but was taken back
at his employment. The court awarded him R 700
000,00 19 years ago.
The current value is n bbbbbbbbbbbover R 2 500 000,00.
[35] In another case the
Megaline v Road
Accident
Fund
[2007] 3
ALL SA 531
(W) an 11-year-old boy suffered a head injury and
experienced profound neurological impairments and disfigurement. The
court held
that his loss of amenities was profound and awarded R 1
000 000,00 for general damages.
[36] In the case of
Nkosi
v RAF
2009 6 QOD J2-16 (GSJ) the plaintiff had lacerations on the
head, a concussion, and chest injury and hand fractures. In current
values, the amount awarded to the plaintiff was R449 000-00.
[37]
The Plaintiff's Counsel referred me to several case laws. It is so
that one cannot find a case that
is exactly the same as that of the
Plaintiff, however there are injuries and sequelae that informs me in
determining the general
damages. I have considered the injuries and I
am inclined to agree with the Plaintiffs counsel
that the plaintiff
must be compensated. I however, considered that in
some of the matters I have been referred to, the injuries might have
been worse,
therefore, I am of the view that the amount that is fair
and appropriate in this matter is the sum of
R 500 000.00
for
general damages.
ORDER
[38]
In the circumstances, the following is the Order of this Court:
1.
The
Defendant
shall pay
the
Plaintiff
the
sum
of
R 960 643
(Nine
hundred and sixty thousand, six forty-three Rand) in respect of loss
of Earnings.
2.
The
Defendant
shall
pay
the
amount
of
R
500 000,00
(Five
Hundred Thousand Rands) in respect of the general damages.
TOTAL:
1 460 643,00
3.
The Defendant shall furnish the Plaintiff with an
undertaking in terms of section 17 (4) (a) of Act 56 of 1996 within
180 days from
the date of delivery of the Court Order.
4.
The Amount in paragraph 1 and 2 above shall be
paid into following Bank Accounts;
NAME OF BANK: […]
ACCOUNT HOLDER: I[…]
P[…] A[…]
ACCOUNT NO: […]
BRANCH CODE: […]
ACCOUNT TYPE:C[…]A[…]
1.
The Defendant shall be liable to pay interest on
the aforesaid amounts
tempore morae
at
the rate of 7% per annum from 180 days after the date of this order
to date of the payment.
2.
The
Defendant
shall
pay
the
Plaintiff
's
taxed
or
agreed
party
and
party
costs until the date of this order including costs
of a counsel scale C.
3.
The costs consequently in the preparation of and
obtaining the medico legal and actuary reports that were served on or
provided
to the Defendant.
4.
The reasonable taxable preparation, qualifying and
reservation fees, if any of the Plaintiffs experts
for
trial of whom notice was given to the Defendant.
5.
The reasonable
taxable
costs
of necessary
consultations
with the said experts and the reasonable
taxable traveling, subsistence
and
accommodation
costs of the
Plaintiff
for
attending
the
medico
legal
examination,
subject
to
the
discretion of the taxing master.
6.
The reasonable taxable costs of traveling,
subsistence, accommodation costs of the Plaintiff for attending
court.
7.
The
Defendant
shall
be
liable
to
pay
interest
on
the
amount
of
the
Plaintiff's
costs of suit, as taxed or agreed, at 7 % per
annum from 14 (fourteen days) of the allocatur of the taxing master
or the date of
the agreement, whichever applies, to date of payment.
MASHAMBA AJ
JUDGE OF THE HIGH COURT,
POLOKWANE;
LIMPOPO DIVISION
APPEARANCES
FOR
THE PLAINTIFF
:
PROF/ADV JLH LETSOALO
INSTRUCTED
BY
:
ISHMAEL PHALA ATTORNEYS
FOR
THE DEFENDANT
:
NO APPEARANCE
INSTRUCTED
BY
DATE
OF HEARING
:
08 MAY 2024
DATE
OF JUDGEMENT
:
23 MAY 2024
[1]
(CA
143/2017)
[2018]
ZAECGHC 20
(20
March 2018)
[2]
Medical
records bundle, page 1-2
[3]
Medical
reports bundle, page 30
[4]
Medical
reports bendle, page 35
[5]
Medical
experts bundle, page 54
[6]
Medical
experts reports bundle page 68-67
[7]
Medical
experts reports bundle page 70
[8]
Medical
experts report bundle page 79-80
[9]
Corporate
Survey Earnings(Robert J Koch, Quantum Yearbook, 2022)
[10]
(Case
No. 04643/2010) [2011] ZAGPJHC I07 (8 September2011)
[11]
(CCT48/05)
[2006] ZACC 4
[12]
Cf:
Sandler
v Wholesale Coal Supplies
Ltd
1941 AD 194
at 199 where the court held: "The amount to be
awarded as compensation can only be determined by The broadest
general considerations
and the figure arrived at must necessarily be
uncertain, depending upon the judge's view of what is fair in all
the circumstances
of the case".