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[2024] ZAMPMBHC 40
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Gebhard N.O (Curatrix Ad Litem for SC Mkhatshwa) v Road Accident Fund (2737/2019) [2024] ZAMPMBHC 40 (5 June 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION-
MBOMBELA [MAIN SEAT]
CASE
NO: 2737/2019
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
DATE:
5 June 2024
SIGNATURE:
CELESTE
GEBHARD N.O
(
CURATRIX
AD LITEM
FOR SC MKHATSHWA)
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
VUKEYA
J
[1]
Sicelo Clifford Mkhatshwa,
hereinafter referred to as “the plaintiff”, was
involved
in a motor vehicle accident which occurred on the 21
st
of
April 2017, while he was a pedestrian. This happened at Mkhuhlu,
Culcutta, in Mpumalanga. The motor vehicle with registration
numbers
and plates H[...] 1[...] M[...], was driven by B Nkatini, hereinafter
referred to as “the insured driver”.
[2]
Although he is currently 23
years old, at the time of the accident he was 17 years old,
and
therefore a minor. It is alleged that the plaintiff sustained
the following injuries as a result of the accident: a fracture
of the
left proximal femur and a lumbar spine soft tissue injury. These
injuries, according to the plaintiff have caused him, amongst
others,
chronic pain and tenderness of the left leg and hip; severe left leg
shortening of 5.2cm; varus deformity; weakness, instability
and
moderate limping gait, etc.
[3]
The plaintiff was immediately
transported to Matikwana Hospital and subsequently transferred
to
Themba hospital and admitted from 28 April 2017 up to 8 May 2017
where he was treated for the abovementioned injuries. The plaintiff
was transferred back to Matikwana Hospital from 8 May 2017 until he
was discharged on 26 June 2017.
[4]
The plaintiff instituted action
against the Road Accident Fund (“the Defendant”)
as the
liable entity in terms of section 17 (1) of the Road Accident Fund
Act 56 of 1996 (‘The Act”). He then caused
summons to be
issued against the defendant and claimed damages allegedly suffered
as a result of the accident under various heads
of damages, namely,
general damages, future medical expenses and past and future loss of
earnings.
[5]
The defendant and the plaintiff
settled the merits and the defendant conceded to being
100% liable
for the plaintiff’s proven damages. The parties also settled
the issue of future medical expenses. What remains
to be determined
by this court are the quantification of general damages and past and
future loss of earnings.
[6]
Ms Celeste Gebhard was appointed
as c
urator ad litem
for the plaintiff as recommended by the
experts because of his pre-existing condition which rendered him
incapable of managing
his legal or financial affairs.
[7]
At the hearing of the matter,
the parties requested the court to proceed in terms of Rule
38 (2) of
the Uniform Rules of court and to dispense with the leading of oral
evidence of the witnesses but to allow for
evidence to
be adduced on affidavit. This request was granted. The parties made
their submissions on record and also filed their
heads of argument.
Summary
of the evidence
[8]
The evidence of the Orthopedic
Surgeon, Dr LA Oelofse, according to the report sworn to
and filed as
evidence, is that the plaintiff was diagnosed with a lumber spine and
suffers from mechanical back pain. He was also
diagnosed with a
fracture of the left femur of the upper leg which resulted in severe
shortening of the left leg by 5.2cm and which
was fully united with
lateral angulation. According to this expert, there are signs of
lateral compartment osteo-arthritis.
[9]
The Orthopedic Surgeon observed
that the plaintiff was still severely symptomatic six years
after the
accident which suggested that there was a definite functional and
structural impairment. His observation was that at
the time of
examination, the plaintiff’s condition had deteriorated and
that he presented with severe shortening of the left
leg and an early
development of lateral compartment osteo-arthritis. This was because
of the malalignment of the femur.
[10]
According to the orthopedic surgeon’s
observation, the plaintiff has a severe limping gait and experiences
pain when running, squatting, walking for long distances climbing
stairs and when handling heavy objects. He opines that the plaintiff
will not be able to perform manual labor which involves walking,
handling heavy objects climbing and standing for long periods
and
that he is best suited for sedentary to light manual labor type of
work. He calculated the plaintiff’s whole person impairment
at
20% and opined that the plaintiff suffered serious injuries which
qualifies in terms of the Narrative Test.
[11]
The Educational Psychologist, Ms D Benade, opined
that, pre-morbid, it would have been unlikely that the
plaintiff
would have been able to complete any school grades higher than grade
6 if the accident did not happen due to the learning
difficulties he
was experiencing. It is likely that he would have dropped out of
school early and would have followed a vocational
or skills training
route.
[12]
The expert further states in her report that the
plaintiff failed to reach the minimum requirements to be
promoted at
the end of grades 8 to 11 and eventually dropped out of school at the
end of grade 11. She opined that he will have
to follow a vocational
or skills training route within the limitation of his physical
abilities. According to the Forensic Psychiatrist,
the plaintiff has
no psychiatric pathology and is not depressed, he however presents
with a pre-existing learning difficulty which
has been aggravated by
the injury sustained in the collision.
[13]
The Clinical Psychologist’s point of view is
that the plaintiff was vulnerable from a scholastic perspective
prior
to the accident, the added impact of the trauma of the accident
together with his residual add to his scholastic difficulties.
This
leaves him even more vulnerable than he was before the accident. As a
result, this will limit his employment options once
he enters the
open labor market.
[14]
According to the Occupational Therapist’s
report, the plaintiff presented with an asymmetrical posture
with a
severe pelvic tilt as a result of the severe leg length discrepancy.
He had a functional movement in his left hip and knee
and the
movement of his left hip elicited pain. Even so, it was opined that
the plaintiff retains the physical capacity to engage
in medium work.
[15]
The Occupational therapist thus concluded that,
the plaintiff is only suited for sedentary and limited light
work
where mobility skills are not a pre-requisite. She opined further
that the plaintiff’s cognitive challenges prevent
him from
securing the type of work he is suited for, and that is, sedentary
and limited light work and therefore, it is highly
unlikely that he
will be able to secure work within these parameters. It is
anticipated that he will struggle to enter the formal
open labor
market.
[16]
The industrial Psychologist’s pre-accident
postulations are that the plaintiff would have entered
into
employment in an unskilled capacity due to his susceptibility to
spells of employment. He would have entered into the labor
market as
a cleaner, gardener, construction laborer general worker, etc. He
would likely have worked in part-time capacities and
would have
earned R36 500, 00 per annum. He would have likely reached his career
ceiling around the age of 45 years old and would
have likely
continued to earn annual inflationary increases until retirement age
65.
[17]
His post-accident postulations are that the
plaintiff will not likely obtain employment given his physical,
cognitive and communication limitations. He will probably have to
rely on informal generation activities such as vending and recycling
and it is anticipated that he will work on a part time basis, working
at most two days per week and recuperating the rest of the
time.
General
Damages
[18]
It
is a trite principle that in claims for general damages, compensation
is awarded for pain, suffering, discomfort, disablement,
loss of
amenities of life and disfigurement resulting from the injuries
sustained from the accident. The authorities have cautioned
against
the courts' tendency to award higher damages as compensation. There
is no mathematical or scientific formula for the computation
of the
monetary value of pain and suffering, loss of amenities of life and
disabilities. (See
A.A.
Mutual Insurance Limited v Maqula
1978(1)
SA 801
(A) and
Southern
Insurance Association Limited v Bailey N.O
1984
(1) S.A. 98
(
A)
at 114.
[19]
In assessing the compensatory award, the court
must be fair to both sides, i.e. an award must be a just
compensation
and must not “pour largesse from the horn of plenty at the
defendant's expense” as stated in
De
Jongh v Du Pisanie
2005
(5) SA 457
(SCA)
.
In
Hully
v Cox
1923 A.D.
234
at
246
,
the
court cautioned the courts against allowing their "sympathy for
the claimants" to influence their judgments in considering
what
compensation to award in cases such as the present.
[20]
The plaintiff submitted that after sustaining the
injuries, he was hospitalized for a prolonged period of
at least two
months and suffered pain and suffering as a result of the accident.
It is further submitted that the plaintiff will
continue to live with
pain and limitations and most probably endure pain and suffering in
the future. The plaintiff referred this
court to several authorities
as reference to what it views to be a fair and just
award for general damages. This includes the case of
Road Accident Fund
v Marunga
2003
(5) SA 65
(SCA)
where a 19 year old sustained a fracture of the femur, soft tissue
injuries and bruises was awarded R175 000, 00.
[21]
The plaintiff also referred the court to
Smit v
Padongelukkefonds
2003 (5E3) QOD 11
(T) where a 24 year
old who had sustained a fracture of the pelvis, bilateral femur
fractures, left arm and left ankle injuries
was awarded R320 000,
00. In
Grobbelaar v Road Accident Fund
2015 (7E3) QOD
11
(GNP), the plaintiff, a 44 year old male person who had
sustained a fracture of the left femur and left patella was awarded
R300 000,
00 in 2014 for general damages.
[22]
It was further submitted on behalf of the
plaintiff that because he remains with physical limitations and
sequelae emanating from the injuries sustained, it is evident that he
will continue to live with pain and limitations and most
probably
endure pain and suffering in the future. Counsel for the plaintiff
therefore submits that an amount of R600 000.
00 is a fair and
reasonable compensation for general damages.
[23]
In respect of general damages the defendant
referred the court to the same cases which the plaintiff made
reference to, namely
Road Accident Fund v Marunga (supra)
and
Litseo v Road Accident Fund (5637/2016)
[2019] ZAFSHC 52
(2 May 2019)
where the court awarded an amount of R700 000. 00 to a plaintiff
who had sustained a malunited right femur fracture
with severe leg
length shortening- of more than 6cm.
[24]
Counsel for the defendant submitted therefore that
an award in the amount of R470 000, 00 – R500 000,
00
is to be considered to be a fair and reasonable award in favor of the
plaintiff for general damages.
[25]
As already stated above, the court has a wide
discretion to award what it considers to be fair and adequate
compensation to the injured party. In the case of
Pitt
v Economic Insurance Co Ltd
1957 (3) SA 284
(N)
at 287E–F Holmes J pointed out the principle and stated that
the court must take care to see that its award is fair to
both sides
– it must give just compensation to the plaintiff, but it must
not pour out largesse from the horn of plenty at
the defendant’s
expense.
In
Sandler
v Wholesale Coal Suppliers Ltd
1941
AD 194
AT 199
,
the court stated that 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.
[26]
I am in agreement with the above views, and also
find it necessary to add that the proper approach to be
followed when
awarding general damages was also stated in
Bay Passenger
Transport v Franzen
1975 (1) SA 269
(A)
where the court
summarized it as follows:
“
Comparable
cases, when available, should rather be used to afford some guidance
in a general way, towards assisting the court in
arriving at an award
which is not substantially out of general accord with previous and
broadly similar cases, regard being had
to all the factors which are
considered to be relevant in the assessment of general damages.
All the same time it may be
permissible, in an appropriate case, to
test any assessment arrived at upon this basis by reference to the
general pattern of previous
awards in cases where the injuries and
the sequelae may have been either more serious or less than those in
the case under consideration”.
[27]
In determining
general damages the court is called upon to exercise a broad
discretion to award what it considers to be fair and
adequate
compensation having regard to a broad spectrum of facts and
circumstances connected to the plaintiff and the injuries
suffered, including their nature, permanence, severity and
the impact on her lifestyle.
There
is no hard and fast rule of general application requiring the court
to consider past awards as they are seldom on all fours
with the
facts of the case under consideration.
[28]
A clear observation in
casu
is that the
plaintiff and the defendant are not very far apart with regards to
the amount to be awarded. The former has submitted
that R500 000,
00 is fair and reasonable while the latter is of the view that
R600 000, 00 is what the court should award
to the plaintiff.
[29]
The plaintiff sustained a fracture of the left
femur, has had a shortening of the left leg and walks with
a limping
gait. He has had a moderate anterior angulation at the fracture site
and a varus deformity. He has suffered a whole-person
impairment of
20%,
as
noted by the Orthopaedic surgeon, Dr Oelofse. His opinion is that the
plaintiff has developed mechanical back pain as a result
of the
scoliosis and leg length discrepancy. Furthermore, it was observed
that his condition was deteriorating and that the pelvic
tilt was
causing him the lower back pain. The plaintiff is said to be
experiencing chronic pain and finds various tasks challenging.
He
cannot walk long distances and cannot stand for prolonged periods. It
is clear that the plaintiff has severe functional impairment
and I am
satisfied that he has proven his claim for general damages on a
balance of probabilities. It is therefore my considered
view that an
amount of R600 000, 00 is a fair and reasonable award for
general damages under the circumstances.
Loss
of Earnings
[30]
In
Dippenaar
v Shield Insurance Co Ltd
1979
(2) SA 904 (A)
the principle was articulated in the following terms by Rumpff
JA:
'In
our law, under the
lex Aquilia
, the defendant must make
good the difference between the value of the plaintiff's estate after
the commission of the delict and
the value it would have had if the
delict had not been committed. The capacity to earn money is
considered to be part of a person's
estate and the loss or impairment
of that capacity constitutes a loss, if such loss diminishes the
estate. This was the approach
in
Union Government (Minister
of Railways and Harbours) v Warneke
1911 AD 657
at 665 where
the following appears:
"In
later Roman law property came to mean the
universitas
of
the plaintiff's rights and duties, and the object of the action was
to recover the difference between the
universitas
as
it was after the act of damage and as it would have been
if the act had not been committed (
Greuber
at
269). Any element of attachment or affection for the thing damaged
was rigorously excluded. And this principle was fully
recognised by
the law of Holland." See also
Union
and National Insurance Co Ltd v Coetzee
1970
(1) SA 295
(A)
where
damages were claimed and allowed by reason of impairment of loss of
earning capacity.'
[31]
It was submitted on behalf of the plaintiff that
he was 17 years old at the time of the accident. He was
hospitalized
for approximately two months and also recuperated for another two
months after being discharged from hospital. It
was further submitted
that the plaintiff had a scholastic delay of about three years at the
time of the collision and the experts
were of the opinion that he had
pre-existing learning difficulties. These pre-existing learning
difficulties may have been exacerbated
by the injuries sustained in
the collision. Counsel requested the court to accept the expert
opinion that the plaintiff would have
competed for unskilled manual
labor position even if the accident did not occur.
[32]
Counsel for the plaintiff argued that the
plaintiff was significantly limited in his job options as a result
of
the injuries he sustained following the accident. Furthermore, his
cognitive abilities limit him to work of an unskilled nature
and
therefore his work capacity has been severely negatively impacted and
truncated. The actuarial calculations suggested that
the amount of
R765 997. 00 was the amount for loss of earnings without the
application of contingencies. It was counsel’s
submission
that a 5% contingency deduction on the pre-morbid amount for past
earnings be applied and that a 15% pre-morbid contingency
be applied
to the amount for future earnings. According to Counsel, this is
reasonable considering that the plaintiff’s career
ceiling is
based on earnings in the unskilled work sector.
[33]
On the post-morbid contingency deductions counsel
suggested a 40% deduction. She argues that this will acknowledge
the
plaintiff’s significant risks and limitations and to take into
consideration that he is regarded as a significantly vulnerable
individual and an unequal competitor in the open labor market. It is
submitted that this will also compensate for the probable
extended
periods of unemployment in the future.
[34]
Counsel for the defendant suggested higher than
normal contingency deductions of less 10/20% for uninjured
income and
35% for injured income and therefore proposed an amount of R678 708,
50 be awarded for loss of earnings. He referred
the court to the case
of A A Mutual Assurance Association v Maqula
1978
(1) SA 805
(A) where Joubert JA remarked as follows:
“
Having
due regard to all these factors in the light of the particular
circumstances of the instant matter I am of the opinion that
it would
be proper and correct to provide for contingency of 50 per cent
in respect of past loss of income as well as future
loss of income.
There is in principle no reason for distinguishing between the two
categories of income for purposes of contingencies.”
On
the basis of this remark, counsel for the defendant suggested a 50%
contingency deductions.
[35]
It is trite that the principle which underlies
calculations of this nature is that the plaintiff is entitled
to a
capital sum of money which would place him in the same financial
position as he would have been had the accident not occurred.
In
A A Mutual
Assurance Association v Maqula
(supra),
the
court held that a trial court in an action for damages for personal
injuries has a wide discretion to award what it in the particular
circumstances considers to be a fair and adequate compensation to the
injured party for his bodily injuries and their
sequelae
.
[36]
I disagree with the submission for a higher
contingency percentage to be applied in the injured scenario
of the
plaintiff as suggested by the defendant. I have considered the
sequelae of the injuries sustained by the plaintiff and that
the
challenges he faces as a result of these injuries have reduced his
earning capacity drastically and rendered him an unsuited
to compete
with his uninjured peers in the open labour market. My view is that
the plaintiff, being a minor at the time of the
accident, did not
suffer any past financial loss as he was still in school. To base the
calculations on “past income”
is an unjustified
irregularity.
Conclusion
[37]
I therefore decided to disregard the postulations
and to consider an award that is fair and reasonable to
the plaintiff
under the circumstance. My considered view is that because the two
parties are not very far apart with regards to
the suggested awards,
that a median will be fair and reasonable to award to the plaintiff
as compensation for Loss of Earnings.
It is therefore my respectful
view that an amount of R719 003, 25 is a fair and reasonable
award for compensation for loss
of earnings.
Order
[37]
In the premises, I make the following order:
37.1.
SEE THE DRAFT ORDER ATTACHED HERETO AND MARKED ANNEXURE “X”
VUKEYA LD
JUDGE OF THE HIGH COURT
For
the Plaintiff:
Adv
J Liebel
Plaintiff’s
Attorneys:
Frans
Schutte & Mathews Phosa Inc.
C/O
SDJ Inc.
Mbombela
Tel:
013 004 0564
Email:
evanheerden@sdjinc.co.za
Ref:
E VAN HEERDEN/LP/F314[N2188]
For
the Defendant
:
Mr.
FG SILIGA
Defendant’s
Attorneys:
State
Attorney
Mbombela
Tel:
013 101 3722
Email:
FulufheloS@raf.co.za
;
Skhumbuzoz@raf.co.za
Ref:
631/12530694/21/1
Link:
4680029
Reserved:
30 January 2024
Delivered:
05 June 2024