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2024
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[2024] ZAMPMBHC 31
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Nyathi v Road Accident Fund (682/22) [2024] ZAMPMBHC 31 (2 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION
,
MBOMBELA (MAIN SEAT)
Case
No: 682/22
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE:
02 May 2024
SIGNATURE
In the matter between:
Fostah
Nyathi
Plaintiff
And
Road Accident
Fund
Defendant
Delivered: This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The
date and time for
hand-down is deemed to be 10:00 on 02 May 2024
Judgment
Phahlamohlaka AJ
1.
This is a claim for damages as a result
injuries sustained in a motor vehicle accident that occurred on 3
March 2021. The plaintiff
was a passenger in the motor vehicle when
the accident occurred.
2.
The defendant conceded 100% liability for
the plaintiffs agreed or proven damages. Counsel for the defendant
submitted that the
issue of future hospital, medical and other
expenses are not in dispute and therefore the defendant will furnish
an undertaking
in terms of section 17(4)(a) of the Road Accident, 56
of 1996 (“the Act”).
3.
The issues for determination are,
therefore, general damages as well as past and future loss of
earnings. The defendant has not
appointed any experts and therefore
relied on the plaintiff’s experts to argue its case. At the
commencement of the trial
the plaintiff made an application in terms
of Rule 38(2) for the experts’ evidence to be adduced through
affidavits. The
application was not opposed by the defendant, and I
accordingly granted it. The plaintiff testified under oath and the
defendant
called no witnesses.
4.
The plaintiff, Fostar Nyathi, testified
under oath that as a result of the accident he sustained the
following injuries:
-
Right shoulder dislocation;
-
Left pelvic fracture;
-
Painful lower leg;
-
Left ribs fracture;
-
Loss of teeth;
-
Neck injury;
-
Injured mouth.
5.
The plaintiff further testified that he had
scratches on the head and an injury underneath his chin. As a result
of the shoulder
injury he is unable lift objects when he wants to
work. He is unable to bend as a result of the pelvic fracture.
Sometimes his
ribs are painful even when he is seated. His chin would
also be painful at times. He experiences persistent headaches. The
plaintiff
is a forklift driver working for Alba packages. At the time
of the accident the plaintiff was not employed. He only got
employment
after the accident. He testified that the injuries
affected his productivity adversely.
6.
Dr Oelofse, the orthopaedic surgeon
recorded the following injuries:
-
Facial injuries;
-
Chest injury;
-
Right shoulder injury;
-
Left hip injury;
-
Lower leg injury.
7.
Dr Oelofse confirms that the plaintiff was
injured under his chin, he broke and lost a tooth during the
accident. Dr Oelofse further
noted that the plaintiff also sustained
a head injury with resultant post-traumatic headaches. According to
Dr Oelofse the plaintiff
will be able to perform light manual work,
with restricted climbing, carrying objects and standing. Dr Oelofse
qualified the plaintiff
for general damages under the narrative test,
with the Whole Person Impairment of 21%.
8.
Dr Irsigler, the Plastic and reconstructive
surgeon, recorded the following scars:
-
Over his (plaintiff’s) scalp on the
right side there are two scars both measuring 2,5 cm x 2mm. The scars
are linear, slightly
raised and homogeneous. It is amenable to
surgical improvement;
-
Over his nose on the right side there is a
scar measuring 1,5 x 1cm. It is irregular and homogeneous and
amenable to surgical improvement;
-
On his bottom lip he has a scar measuring
2cm x 5mm;
-
He has a deformity of the upper lip (step
deformity);
-
Over his chin there is a 2cm x 5mm scar;
-
Underneath his chin, extending onto his
neck, there is a scar of 8cm x 7cm.
9.
Dr Irsigler concludes that the plaintiff
will retain scarring which will not lend itself to any further
surgical improvement. Dr
Irsigler also qualified the plaintiff for
general damages under the Narrative test.
10.
The occupational therapist, Mr C Durandt,
recorded that since the accident, the plaintiff has been able to work
in the same capacity
as his work history, but with reported left hip
discomfort when getting onto and off the forklift, as well as with
excessive sitting.
Based on the physical and functional capacity
evaluation, the plaintiff is currently able to meet all the inherent
job demands
of a forklift operator. He may require a small step to
minimise the climbing height onto the forklift. Although there are no
formal
requirements pertaining to sitting, rest breaks are advised
after every 1-2 hours of sitting.
11.
The occupational therapist concludes by
opining that should the plaintiff receive suitable and successful
medical intervention it
is anticipated that he will experience relief
in his discomfort and experience of pain. He may be capable of
performing work as
a forklift operator with better mobility and
agility and with improved manual coordination and lifting ability
until retirement
age.
12.
According to the industrial psychologist,
David De Vlamingh, prior to his involvement in the accident, the
plaintiff’s work
history was limited to work as an Assembler,
Barman and Forklift Driver. At the time of the accident, he was
recently unemployed
because his contract just ended, but he was
actively looking for employment when involved in the accident.
13.
On the pre-accident vocational and earning
potential, the industrial psychologist opines that his pre-accident
employment earnings
progression would likely have mirrored his actual
post-accident career progression to date, however, without any
limitations. At
the time of the accident, Mr Nyathi was just 30 years
of age and at the early stages of his career development. According
to the
industrial psychologist the plaintiff would still have secured
his current employment as a forklift driver in the employer of alpha
Packaging in June2021, earning between the lower quartile and median
of the Paterson A3 level in 2022 (R13,843 salary plus pension
benefits) as per September 2022 payslip.) In addition, the plaintiff
would have commenced his higher certificate in logistics and
supply
chain management studies in 2023, as it was reportedly financed by
Alpha Packaging. Upon completion of his hiya certificate
in logistics
and supply chain management (at the end of 2024), the plaintive is
total package would have increased to fall at the
median of the
Peterson B2 level (R45,833 p/m in 2023-rand value, total package) By
the age of 45. Thereafter, only inflationary
increases would have
applied until his retirement age of 65.
14.
With regard to the post-accident career
prospects, the Industrial psychologist opines that based on all the
available information,
research conducted in the expert medical
opinion is received, the writer concluded that post-accident he will
no longer be able
to reach his pre-accident career and earnings
potential. Taking into account his self-reported difficulties he has
done well to
secure his current position and is fortunate to have
understanding employers. The industrial psychologist further records
that
following the recommended treatment and rehabilitation, Mr
Nyathi’s vocational capacity should improve somewhat, and he
should
be able to retain his current employment and still develop his
career in line with his pre-accident postulation. However, there
is
no doubt that Mr Nyathi has been rendered less productive and
efficient than his uninjured colleagues and his lack of
self-confidence
due to his dental and facial injuries will probably
result in lower career peak than in his uninjured scenario. The
industrial
psychologist concludes that Mr Nyathi has clearly
Sephardic future loss of earnings as a result of the accident in
question and
its sequelae.
15.
In order to succeed on a claim of future
loss of earnings or earning capacity, the plaintiff must prove that
the accident affected
his estate adversely. In other words, the
plaintiff must prove that as a result of the accident his estate has
diminished. It is
common cause that at the time of the accident the
plaintiff was unemployed, and therefore had no estate. It is further
the plaintiff’s
evidence that he obtained employment after the
accident, and he was even able to pursue his studies.
16.
Counsel
for the plaintiff submitted that, considering the setback of the
plaintiff’s career, caused by the accident and the
injuries
sustained, the plaintiff is likely to reach a lower career and
earnings ceiling and also likely to reach such ceiling
at a later
stage than postulated in the injured scenario. He will have slightly
slower earnings growth according to expert opinion.
I was also
referred to the matter of
Van
Dyk v Road Accident Fund
[1]
where a 10% pre-morbid contingency deduction and a 25% post-morbid
contingency deduction was applied. Counsel also referred me
to
Van
Rooyen v Road accident Fund
[2]
where
the court applied a 15% pre and 35% post-accident contingency
deduction. The plaintiff in Van Dyk
supra
was 44 years of age and in Van Rooyen
supra
the plaintiff was 42 years of age.
17.
I agree with the principle in the two cases
referred to in paragraph 16 above. However, they are both
distinguishable to this case
because the plaintiff in this matter was
unemployed pre-accident. I agree with the argument by the plaintiff’s
counsel that
a 25% contingency deduction is fair and reasonable
considering the age of the plaintiff.
18.
Counsel on behalf of the defendant
submitted that since the accident the plaintiff has been able to work
in the same capacity as
his work history, but with reported left hip
discomfort when getting onto and off the forklift, as well as with
excessive sitting.
Counsel further submitted that the plaintiff will
still be able to do his forklift work. The plaintiff was not hindered
by the
accident to complete his qualification for Logistic Management
at Rosebank College. The plaintiff was able to get a job within the
same field of skill and earning more that he was before the accident.
Therefore, the defendant submitted, it is clear that the
accident has
not adversely affected the plaintiff’s earning capacity and as
such no future loss of earnings can be justified.
19.
The defendant contended that because the
plaintiff suffered no loss of earning capacity, the court should
order absolution from
the instance or alternatively apply a 10%
contingency differential spread based on the pre and post morbid
scenarios being the
same. I agree with counsel for the defendant that
the plaintiff is able to work post-accident. However, the 10%
contingency deduction
cannot be justified.
20.
In
light of the evidence presented before me, the plaintiff is able to
function optimally post-accident. There is no evidence regarding
the
plaintiffs pre-accident employment status. The experts only rely on
postulations which, in my view, are speculative. It is
settled that
the plaintiff did not suffer any loss of earnings as a result of the
accident although he may have suffered a residual
capacity to earn.
In
Rudman
v Road Accident Fund
[3]
Jones AJA said:
“
In
my opinion the learned Judge in the court a quo has not misdirected
himself in his understanding of these authorities or in his
application of the law to the facts. His judgment correctly
emphasises that where a person’s earning capacity has been
compromised,
that capacity constitutes a loss, if such loss
diminishes the estate” (Rumpff CJ in the above quotation from
Dippenaar’s
case) and “he is entitled to be compensated
the extent that his patrimony has been diminished “(Smalberger
JA In President
Insurance Co Ltd v Mathews).”
This
principle was adopted in a number of cases, and it is now settled
that once there is a diminution of the estate this will translate
into a monetary loss. The converse thereof is that where there is no
diminished estate there is no loss. See also
Griffiths
v Mutual and Federal Insurance
Company
Limited
[4]
[1993] ZASCA 121
; 1994(1) SA 535(A); and
President
Insurance Company Limited v Mathews
[5]
1992 (1) SA 1.
21.
In my view, the plaintiff
in
casu
suffered only a residual capacity
loss. The plaintiff testified that he is able to do his job as a
forklift driver, albeit with
discomfort. He said that his co-workers
are complaining because he takes constant breaks, but that is the
only complaint he testified
about. I did not understand the plaintiff
to assert that his employer is complaining about his work
performance. Because he was
not working at the time of the accident,
his patrimony has not diminished and therefore his pre and
post-accident employment potential
are the same. The Actuary
calculated the plaintiffs value of loss as follows:
-
Income if the accident did not occur
:7 256 007
-
Income given accident did occur
:5 747 107
-
Difference
:1 508 900
22.
As alluded to earlier, the plaintiff’s
pre and post-accident earning potential are the same and I will apply
a contingency
differential spread of 5%. The results of my
calculations are as follows:
-
Income but for the
accident
:7 256 007
-
Less 15%.
:1 088 401.05
-
Subtotal.
:6 167 605.95
-
Income having regard to the accident
:7 256 007
-
Less
20%
:1 451 201.4
-
Subtotal
:5 804 805.60
Total
value of loss.
362 800. 35
23.
In
as far as general damages are concerned, the Road Accident Fund has
accepted the injuries sustained by the plaintiff as serious
and
therefore the issue is the quantum of damages in this regard. The
duty of the court is to award fair and just compensation
to the
plaintiff who sustained serious injuries as a result of the accident.
Because there is no mathematical formula to calculate
the amount to
be awarded for general damages, previously decided cases should serve
as a guide in that regard. I am alive to the
fact that the award of
the amount is discretionary, but one must be guided by comparable
cases in order to arrive at a fair amount
of compensation. I agree
with the principle in
Protea
Insurance Co Ltd v Lamb
[6]
where
it was held that a comparison of a plaintiff’s general damages
with previous awards need not take the form of a meticulous
examination of awards made in other cases in order to fix an amount
of compensation, nor should the process be allowed to dominate
the
inquiry so as to fetter the general discretion of the court.
24.
Counsel
for the plaintiff submitted that I should award the plaintiff an
amount of R 700 000.00 as compensation for general
damages. On
behalf of the defendant, it was submitted that I should award an
amount of R 350 000.00. Both Counsel referred
to two common
comparable awards to argue for their different amounts. In
Seconds
v Road Accident Fund
[7]
the plaintiff was a 43-year-old female educator who sustained several
injuries, including posterior dislocation of the left hip
joint and a
fracture of the posterior wall of the acetabulum. After initial
exploration of her left hip joint, a hip replacement
was eventually
undertaken. Hereafter her bone crumbled, and she was eventually
boarded due to her inability to continue with her
work as educator.
An amount of R 200 000 was awarded, with a current monetary
value of R 516 000.00. In
Peter
v Road Accident Fund
[8]
the plaintiff was a 40-year-old male electrical technician. He had a
displaced intra-articular fracture of the acetabulum as result
of the
violent compression of femur head against it, as well as considerable
articular ligamentous damage. Osteo-arthritis to follow,
which by
itself would require total hip replacement in 5 years’ time,
and significant prospect of necrosis developing, in
which event the
hip replacement would have to be performed even earlier. Second hip
replacement (a more comprehensive and risky
procedure than the first)
to be required some 15 years later. Also, some marked scarring of the
right arm for which plastic surgery
could achieve 50% improvement. An
amount of R 180 000.00 was awarded with the current monetary
value of R 514 000.00.
25.
Counsel
for the plaintiff also referred to
Mpondo
v Road Accident Fund
[9]
and
Mdinginya
v Road Accident Fund.
[10]
The injuries in these two cases are more serious than the injuries
sustained by the plaintiff in the present case. However, a more
comparable case is that of
Mills
v Road Accident Fund
[11]
where
the plaintiff was a 42-year-old broker consultant who sustained
significant scarring of the right forearm and glass that became
embedded therein, had to be removed under general anaesthetic. There
was an obvious scar of the forehead. He also sustained a fracture
of
the acetabulum on the right hip and will require a right hip
replacement within approximately 10 years. Plaintiff was an active
sportsman prior to collision, but significantly hampered in
participating in sports thereafter.
26.
In
casu
,
the plaintiff sustained, among others, fracture of the acetabulum
which was managed conservatively, and he received pain medication,
anti-inflammatory medication, and crutches. He also sustained a soft
tissue injury of the shoulder, with residual soft tissue pain.
The
plaintiff also presented with mild tenderness over the left ribs and
anteriorly over the chest. The plaintiff was also injured
under his
chin, he broke a tooth and lost another tooth during the accident. Dr
Irsigler, the plastic and reconstructive surgeon,
recorded the
following scars on the plaintiff:
26.1
two scars measuring 2,5 x 2 mm on the right
side over his scalp;
26.2
a scar measuring 1,5 cm x 1 cm over his
nose on the right side;
26.3
A scar measuring 2cm x 5 mm on his bottom
lip;
26.4
He has a deformity of the upper lip (step
deformity). The deformity is slightly diagonal;
26.5
Over his chin there is a 2 cm x 5mm scar;
26.6
Underneath his chin, extending onto his
neck, there is a scar of 8 cm x 7 cm.
27.
Counsel
for the defendant could not justify the amount he proposed, except to
submit that the injuries sustained by the plaintiff
and their
sequelae are less serious than the injuries in the two judgments he
referred to. I do not agree with the defendant’s
counsel
because he did not make mention of the several scars recorded by the
plastic and reconstructive surgeon. In
Mashigo
v Road Accident Fund
[12]
the
plaintiff had sustained a soft tissue injury to the left wrist, a
soft tissue injury of the left knee, and bum wounds to her
arms and
breasts. The plastic and reconstructive surgeon in that case
described that scaring as follows: “
a
disfiguring scar measuring 180 mm x 20 mm on the anterior aspect of
the left breast the lower medial and upper quadrants and extending
onto the outer quadrant of the breast. It has a hypertrophic margin
and the centre of the scar is depigmented. There is a similar
scar
measuring 100 mm by 25 mm running transversely across the surface of
the right breast. It also has a hypertrophic margin with
a
depigmented centre. The scars to the arms are similarly 10 cm or
longer each and are hypertrophic or post abrasion in nature
but they
are hyper pigmented.”
The
plaintiff was awarded R 450 000.00 as compensation for general
damages with the current monetary value of R 612 000.00.
28.
Considering the injuries as recorded by the
experts and the sequelae thereof, I am of the view that a fair and
reasonable amount
to be awarded for general damages should be R
650 000.00.
29.
In the result I make the following
order:
(a)
The defendant is ordered to pay the
plaintiff the sum of R 1 015 800.35 (one million fifteen
thousand and eight hundred
rand and thirty five cents) being R 365
800. 35 (three hundred sixty-five thousand eight hundred rand and
thirty-five cents) as
compensation for future loss of earning
capacity and R 650 000.00(six hundred and fifty thousand rand)
for general damages.
(b)
Interest thereon at the rate of 11.75% from
the date of judgment until the date of final payment.
(c)
The defendant is ordered to furnish the
plaintiff with an undertaking in terms of section 17(4) (a) of the
Road Accident Fund Act,56
of 1996, for 100% of the costs of future
accommodation of the plaintiff in a hospital or nursing home, or
treatment of, or the
rendering of the service or supplying of goods
to him resulting from a motor vehicle accident that occurred on 3
March 2021, after
such costs have been incurred and on proof thereof.
(d)
Costs of suit.
K f Phahlamohlaka
Acting Judge of the High
Court,
Mpumalanga Division,
Mbombala (Main Seat)
For
the Plaintiff:
Adv
AR Van Staden
Instructed
by:
Frans
Schutte & Mathews Phosa Inc.
Email:
evanheerden@sdjinc.co.za
For
the Defendant:
Mr
Mkansi
Instructed
by:
State
Attorney
Email:
CaswellM2@raf.co.za
phindilek@raf.co.za
Date
judgment reserved:
12
March 2024
[1]
2003 95
E
8)
QOD 1 AF
[2]
2011
(6C4) QOD 25 (ECM)
[3]
(370/01)
[2002] ZASCA 4
All SA 422(SCA) at para 11
[4]
[1993]
ZASCA 121
; 1994(1) SA 535 (A)
[5]
1992(1)
SA
[6]
1971(1) SA 530(A) at 535H-536A
[7]
2006(5F3) QOD 30(SE)
[8]
2003 (5F3) QOD 9 (BHC)
[9]
2011(6F2) QOD 11(ECG)
[10]
2008(5F3) QOD 50 (CHC)
[11]
2011(6F2) QOD 1 (KZD)
[12]
[2018] ZAGPPHC 539 (13 June 2018)