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[2024] ZALMPPHC 67
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Lizer v Road Accident Fund (2764/2022) [2024] ZALMPPHC 67 (17 July 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:2764/2022
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO
THE JUDGES:
YES
/NO
(3)
REVISED
Signature:
Date
17
TH
JULY 2024
In the matter between:
MAGOMANA RASEABANE
LIZER
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MONENE AJ
[1]
On 6 October 2019 the plaintiff, then a
53-year-old lady, was passenger in a motor vehicle which collided
with another on the R37
road in the Groblersdahl area within the
geographical area of this court
[2]
On being admitted at hospital she was found
to have suffered a left tibial plateau fracture, a back injury and a
traumatic brain
injury.
[3]
In the aftermaths of all that she
instituted proceedings against the defendant under cover of
section
17
of the
Road Accident Fund Act 56 of 1996
.
[4]
As is now standard reaction to these kinds
of actions the defendant offered absolutely no defense to the
plaintiff’s claim.
[5]
The matter served before this court in
default with the plaintiff praying that I determine the question of
liability, the loss of
earnings and the need for the defendant to
make an undertaking in respect of the future medical needs of the
plaintiff to the extent
that those medical needs would be arising
from the injuries sustained in the said motor vehicle accident.
General damages were
placed on the backburner on account of the
defendant having not yet made an election on the extent and/or
seriousness of the injuries
in casu.
[6]
The plaintiff sought and was granted leave
to prosecute her case on paper in terms of Uniform
rule 38(2).
MERITS
[7]
Pursuant to proving merits I was referred
to both the plaintiff’s section 17(f) affidavit and the
accident report, both of
which proved that indeed the plaintiff was a
passenger in one of the motor vehicles involved in the motor vehicle
accident implicated
in this matter.
[8]
The proverbial one percent negligence being
clearly in the offing, I have no hesitation in finding on the merits
that the defendant
is 100 percent liable for the plaintiff’s
proven damages.
LOSS OF EARNINGS
[9]
According of the evidence of the
orthopaedic surgeon,Dr Makgabo John Tladi ,the plaintiff presented
with constant left knee, back
and lower limb pain. The sequalae of
her injuries are an antalgic gait, left knee and back pains, multiple
arthropathy and post-traumatic
osteoarthritis of the knee joint. Dr
Tladi opined that the plaintiff has a serious long-term impairment or
loss of body function
with a whole person impairment of 10 percent.
[10]
The clinical psychologist, one Linda Maye
opined that the plaintiff suffered a traumatic brain injury which had
significantly debilitated
and impaired her cognitive functioning in
her personal, social and income-generation life. She had changed from
a pre-accident
physically and mentally fit sociable person to a
post-accident shadow of her former self reflecting social detachment,
being a
fatigued bundle of pains whose neurophysical difficulties
were of a permanent nature.
[11]
L.K Papo, an occupational therapist,
testified that the plaintiff who had a grade 12 level of education
and was prior to the accident
employed as general worker at a farm,
was post the accident virtually unemployable as she fails to meet the
physical work samples
within the norm standards for all occupations,
be they heavy, medium or light. She remains, it was testified to by
this witness,
academically available for sedentary to light types of
work but in reality, is more likely to be unemployed for the
remainder of
her employment years.
[12]
Completing this gory picture of the
hopelessness of the plaintiff’s life in the wake of the
accident was Tshepho Kalanko,
an industrial psychologist. The key
take home from this witness’ evidence was that at the age of 53
years at the time of
the accident the plaintiff had already reached
her career ceiling and would, but for the accident, have continued
working in her
pre-accident employment or been exposed to similar
employment opportunities until the normal retirement age. It was this
witness’
expert opinion that the injuries suffered by the
plaintiff and their sequelae had rendered the plaintiff an unequal
competitor
in the open labour market.
[13]
Armed with all the above background
information and expert opinions Wim Loots, an actuarial scientist
gave evidence of his computations
the long and short of which was a
total loss of earnings of R1 246 706.00 to which no contingencies
were factored.
[14]
In this court’s view, the lodestar to
a proper approach in assessing loss of earnings remains
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. It has
open to it two possible approaches. One is for the judge
to make a
round estimate of an amount which seems to him to be fair and
reasonable. That is entirely a matter of guesswork, a blind
plunge
into the unknown. The other is to try to make an assessment, by way
of mathematical calculations, on the basis of assumptions
resting on
evidence. The validity of this approach depends upon the soundness of
the assumptions, and these may very from the strongly
probable to the
speculative.”
[15]
I find that given the dire picture painted
by the clinical psychologist as summed supra about the extent of the
compromise visited
upon the plaintiff’s cognitive abilities;
given the extremely poor prospects of this now 56 year old plaintiff
finding any
worthwhile income-generating means and given the fact of
her having reached her career ceiling, the assumptions of the
industrial
psychologist and those of the actuary are more strongly
probable than speculative and can safely be relied upon. If anything,
if
I was to fault the educated augururs in this matter it would be
that I find the loss of earnings figure a bit conservative given
the
injuries and sequelae. However, I will not ride that horse lest I
plunge into the unknown thereby misled not by evidence but
by
injudicious maudling sympathy.
[16]
It being so that my sense of what is just
says that had I ridden the horse of a guessing judge, who although a
layman in matters
actuarial, arrives at round estimate amount, I
would have arrived at an estimate a bit more above the actuary in
casu’s computations,
I am disinclined to exercise my discretion
in favour of interfering with the amount computed by way of
contingencies. That is despite
the submissions of Mr Moifo on behalf
of the plaintiff who in his well-reasoned and most helpful heads of
argument and in submissions
before me had argued for a differential
contingency of 10% for past loss and 25 % for future loss of
earnings, the result of which
would have been a diminution in the
capital amount proposed by the actuary.
FUTURE MEDICAL
TREATMENT
[17]
According to the orthopedic surgeon’s
evidence the plaintiff still needs treatment in the form of lumbar
spine decompression
and fusion, total left knee replacement and
revision as well as physiotherapy and facet infiltration.
[18]
The clinical psychologist opined that
opined that that the plaintiff will in future need psychiatric
intervention and psychotherapy.
[19]
The occupational therapist gave evidence to
the effect that the plaintiff will in the future incur expenses in
pursuit of physiotherapy
and the purchase of occupational therapy
assistive devices such as a customized domestic trolley, an
adjustable foot stool and
a shopping bag on wheels.
[20]
In all the above circumstances it cannot be
gainsaid that a case for an order compelling an undertaking for
medical expenses has
been mounted successfully.
[21]
In the result of all the foregoing I make
the following order:
21.1
The defendant is liable to pay 100 percent
of the plaintiff’s proven damages arising from the motor
vehicle accident of 6
October 2019 in which the plaintiff was a
passenger.
21.2
The defendant shall pay the plaintiff a
total sum of R1 246 706.00 (
ONE MILLION
TWO HUNDRED AND FOURTY SIX THOUNSAND SEVEN HUNDRED AND SIX RANDS
ONLY
) in respect of the loss of
earnings suffered by the plaintiff in relation to the motor vehicle
accident in
casu.
21.3
The amount in order number 21.2 above
shall, within 180 days from date of this order, be paid by direct
transfer into the trust
account of Komane Attorneys the details of
which are the following:
BANK: FNB
ACCOUNT NO: 6[...]
BRANCH CODE 250655
REF:
KOMANE/MRL/191/PI/JF/19
21.4
In the event of the above capital amount
not being paid timeously, the defendant shall be liable for interest
at the prescribed
rate of interest per annum, calculated from the
date of mora to date of payment.
21.5
The defendant shall furnish the plaintiff
with an undertaking in terms of section 17(4) (a) of Act 56 of 1996
in respect of all
medical treatment, medical costs and the supply of
any medicine and goods and services arising out of the injuries
sustained by
the plaintiff in the motor vehicle accident implicated
in this matter.
21.6
The defendant is ordered to pay the cost of
this suit on a High Court scale inclusive of the costs attendant to
obtaining the expert
reports relied upon in evidence and the costs of
counsel on scale B.
21.7
The plaintiff shall, in the event that the
parties are in disagreement as to the costs referred to supra, serve
a notice of taxation
on the defendant and shall allow the defendant
14 court days post taxation to make payment of the taxed costs.
21.8
The issue of general damages is postponed
sine die.
MALOSE.S. MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
6 May 2024
Judgement
delivered on
:
17 July 2024
For
the Plaintiff
:
Adv. M B Moifo
:
Instructed by Komane Attorneys
:
Tel: - 013 265 1156
:
Email:
admin@komanelaw.co.za
For
the Defendant
:
No appearance