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[2024] ZALMPPHC 66
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Chiloane v Road Accident Fund (1885/2016) [2024] ZALMPPHC 66 (17 July 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:1885/2016
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO
THE JUDGES:
YES
/NO
(3)
REVISED
Signature:
Date: 17 July 2024
In the matter between:
OUPA
CHILOANE
APPLICANT
And
ROAD ACCIDENT
FUND.
RESPONDENT
JUDGMENT
MONENE AJ
[1]
The plaintiff instituted action proceedings
against the defendant for damages arising from a motor vehicle
accident which occurred
on 17 August 2014. Having been a driver of
one of the motor vehicles the plaintiff had the merits settled in his
favour on an 85%
basis.
[2]
Having initially filed the routine generally bare
denial plea to this matter the defendant partook no further in the
long evolution
of the matter such that post discovery stage only the
plaintiff had expert reports filed when the matter was set down for
trial.
Why it took a full ten years for this matter remains a mystery
that is yet again lamented by this court. I am not inclined to detail
the unsightly history in the file accounting for this delayed justice
on the plaintiff, but a cursory look suggests a combination
of
lethargy, indecisiveness and kicking of the can across the road to
varying degrees by almost all role players. All but the helpless
plaintiff.
[3]
The plaintiff proceeded before this court per
default, sought and was granted leave to prosecute his case in terms
of Uniform Rule
38(2).
[4]
It being so that the jurisdiction of this court is
unfortunately as per precedence hampered by the defendant, an
opposing litigant’s
failure to make an election on the
seriousness of the injuries involved
in
casu
, what stands to be determined
before this court is the quantum of the plaintiff’s loss of
earnings. Ancillary thereto is
a standard prayer for an undertaking
insuring the plaintiff’s future medical expenses in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.
[5]
Under cover of affidavit the plaintiff adduced the
following uncontested evidence in brief:
5.1
Dr Peter T Kumbirai, an orthopedic surgeon’s
evidence was that the plaintiff suffered a femoral head fracture, a
dislocation
of the right hip, a fracture of the right acetabulum and
a fracture of the right humerus.
5.2
An occupational therapist, Jane Baker’s
testimony was to the effect that the plaintiff presented with
decreased range of movement
and muscle strength in his right hip. It
was her further evidence that flowing from his injuries his
employment prospects will
be reduced and further that even if
employed he will due to reduced physical abilities have difficulties
in maintaining employment
while being generally disadvantaged in the
open labour market.
5.3
Dr Zurayda Shaik an industrial psychologist opined
that because most pre- accident capacities had been compromised the
plaintiff
would rely only on scarcely available sympathetic
employment. The doctor also observed that the thread of the
plaintiff’s
need for medical treatment in the future was
prominent in the reports of the Orthopaedic surgeon and the
Occupational Therapists.
5.4
Armed with the background of the above expert
opinions Munro Actuaries computed a capital loss of earnings
excluding a RAF cap at
R8 184 490.00 and capped loss of R6 582 900.00
both ostensibly factoring in contingencies on a spread of 5% on past
and 15% future
earnings.
[6]
The approach in assessing loss of earnings can be
put no better than it was stated in
Southern
Insurance Association v Bailie v NO 1984(1) SA 98(A) at 112E-114F
where the following was said:
“
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, augururs 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...”
[7]
I do not have the benefit of soothsayers and
oracles as I make a prediction of a future loss in the present day
but at least I have
the benefit of experts’ opinions to assist
me in that speculation and make it one guided by expertise. To
deviate therefrom
I need something better or a counterview, which
evidently, is lacking in casu.
[11]
The summary of expert evidence led before me
above, which evidence I have no reason nor inclination to deviate
from is, in my view,
sufficient determinant of the quantum opined on
loss of earnings. Given the well-documented sequalae of the injuries
suffered by
the plaintiff, particularly his severely hampered
employment prospects, his stated pre-accident earnings as an LHD
operator of
no less than R17 000.00 per month and his youthfulness at
the time of the accident(He was just 30 years of age), and his being
declared medically unfit to continue with his pre-accident
employment, I cannot fault the computations arrived at by the
actuary.
[12]
Accordingly, I am persuaded to award the plaintiff
general loss of earnings in accordance with the capped computation of
the actuarial
scientist. To that amount the 15% apportionment in
accordance with the 85% merits settlement is to be subtracted.
[13]
It is clear from the reports of the orthopedic
surgeon, the radiologist Mkhabele C Zulu and the occupational
therapist that the
plaintiff will need to intermittently consult
various medical practitioners for virtually the rest of his life. I
can only imagine
how the inexplicable injustice of a ten-year delay
in that regard have impacted on him.
[16] In all the above
premises, I make the following order:
[16.1] The defendant
shall pay an amount R 5 595 465.00(
FIVE MILLION FIVE HUNDRED
NINETY-FIVE THOUSAND FOUR HUNDRED AND SIXTY FIVE RANDS ONLY
) as
loss of earnings computed as R6 582 900.00 less fifteen percent
thereof and as damages for injuries suffered in the accident
implicated herein
[16.2] The amount stated
supra shall be paid into the infra-mentioned trust account within 180
days by direct transfer:
ACCOUNT HOLDER: A M
MAMMILE ATTORNEYS BANK: FNB
ACCOUNT NUMBER 6[...]
BRANCH CODE: 240455
REFERENCE NUMBER:
Am/mva/1083/CLN.
16.3
The defendant shall furnish the plaintiff with an
undertaking in terms of section 17(4)(a) of Act 56 of 1996 for the
costs of medical
treatment arising out of the injuries sustained by
him in the motor vehicle accident which occurred on 17 August 2014
upon proof
thereof, limited to 85%.
16.4
The defendant shall pay the plaintiff’s
taxed or agreed to party and party costs on a high court scale which
costs shall include:
16.4.1
Costs of Counsel on scale B
16.4.2
The costs attendant to obtaining the expert
reports of Dr. Peter T Kumbirai, Jane Baker, Dr Z Shaik and Munro
Actuaries.
16.5
Should the defendant fail to pay the amount
timeously; the plaintiff shall be entitled to recover interest
thereon on the prescribed
rate of interest from the date of allocator
to date of final payment.
16.6
The issue of general damages is postponed sine
die.
M S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
6 May 2024
Judgment
delivered on
:
17 July 2024
For
the Plaintiff
:
Mr . A M Mammile
:
Instructed by A M Mammile Attorneys
:
Tel: - 087 153 1673
:
Email:
abel@mammileattorneys.co.za
:
Cell: 082 922 8828
For
the Defendant
:
No appearance