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2024
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[2024] ZAMPMBHC 47
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Nsingwane v Road Accident Fund (525/2022) [2024] ZAMPMBHC 47 (9 July 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
MAIN
SEAT
Case
No: 525/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: No
(3)
REVISED: No
DATE:
09/07/2024
SIGNATURE
In
the matter between:
SIBUSISO
THUNZINI NSINGWANE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
This
judgment was handed down electronically by circulation to the
parties/and or parties’ representatives. The date and time
of
hand-down is deemed to be 09 July 2024 at 10h00.
JUDGMENT
RYNEVELDT
AJ
INTRODUCTION
[1]
This case has its origins in a delictual action for damages. Mr.
Sibusiso Thunzini Nsingwane (“the
Plaintiff”) is holding
the Defendant accountable for injuries he sustained as a passenger in
a motor vehicle accident that
took place on 13 November 2020 along
the N4 Toll Route, Ngodwana, Mpumalanga Province.
[2]
Merits have been conceded 100% in favour of the Plaintiff, and a
Section
17(4)(a) Road Accident Fund Act 56 of 1996 (“the Act”)
undertaking
has been tendered to Plaintiff for future medical and hospital
expenses, that may arise out of the said accident.
[3]
Despite the Plaintiff's amended Particulars of Claim indicating a sum
of R50 000,00
[1]
, for past
medical and hospital expenses, legal representatives for both parties
did not address the Plaintiff's past medical and
hospital
expenditures in their submissions. Additionally, the Plaintiff gave
no evidence to support the said sum claimed. Since
the Plaintiff has
not proven its case concerning this head of damages, I find no
justified basis to award the Plaintiff any past
medical and hospital
expenses.
[4]
The following issues however remained in dispute between the parties
at the time of trial:
4.1
General damages
4.2
Loss of earnings- Past and Future Loss of Income.
[5]
This court was called upon to determine the appropriate General
damages amount and the appropriate
contingencies that should be
applied concerning the Plaintiff’s loss of earning capacity.
TRIAL
EVIDENCE
[6]
At the commencement of the trial, Defendant’s counsel Mr.
Madavha, confirmed that Defendant
does not have any medico-legal
expert reports of its own and that Defendant will rely solely on
Plaintiff’s medico-legal
expert reports, it was on this premise
that the trial proceeded and by which the above medical- legal expert
reports were accepted
by agreement between the parties as evidence by
affidavit in terms of Section 34(2) of the Civil Proceedings Evidence
Act 25 of
1965 as amended and this Court’s Uniform Court Rule
38(2).
[7]
The following medico-legal experts’ affidavits were marked as
Exhibits:
Exhibit
A- Dr Akhona Mazwi- Neurosurgeon
[2]
Exhibit
B- Mr. Samuel Mphuthi- Clinical Psychologist
[3]
Exhibit
C- Mr. Mashaba Saddy- Occupational Therapist
[4]
Exhibit
D- Ms. Chamisa-Maulana- Industrial Psychologist
[5]
Exhibit
E- Ms. Jullie Anne Valentini – Actuary
[6]
Exhibit
F- Dr. Joseph Sibanyoni Orthopedic Surgeon
[8]
During the trial, the Plaintiff and Defendant's arguments were based
on the medico-legal expert
reports so marked.
GENERAL
DAMAGES
[9]
Regarding the Plaintiff’s amended Particulars of Claim
[7]
,
Plaintiff sustained the following injuries:
-
Multiple facial injuries;
-
Head injuries;
-
Clavicle Fracture;
-
Soft Tissue injuries;
-
Multiple open wounds on the face;
-
Body injuries.
[10]
The Act was revised to include provisions that marked a new era in
the history of third-party claims in South
Africa. The laws related
to the Defendant’s responsibility to pay third parties for
non-pecuniary loss (general damages)
apply to this matter. The
Defendant’s obligation is now confined to severe injuries as
defined in Sections 17(1) and
(1A) of the Act.
[11]
Mr. Magagula and Mr. Madavha attested to the Plaintiff's entitlement
to General damages, using the Health
Professional Council of South
Africa's (HPCSA) letter dated December 13, 2023, as confirmation of
this entitlement.
[12]
The Orthopaedic Surgeon Dr. Sibanyoni, the Plaintiff ‘
sustained
a severe injury of the cervical spine which healed with poor outcome
and qualities for general damages’
[8]
.
He further opined that the Plaintiff’s prognosis is poor even
though his cervical spine injuries have healed and that the
Plaintiff
will benefit from future surgery
[9]
.
[13]
Future cervical fusion medical operation is needed to help alleviate
the Plaintiff’s pain and improve
his range of motion, according
to Dr. Sibanyoni, and accordingly Plaintiff’s future disability
would improve
[10]
.
[14]
In Dr. Mazwi’s conclusion, he stated that the Plaintiff
sustained a mild head injury with significant
long-term
disturbance
[11]
.
[15]
The clinical psychologist indicated that the mild head injury
sustained by the Plaintiff gave rise to permanent
neurocognitive
deficits within a least moderate to severe degree of severity
[12]
.
[16]
In the case of
Protea
Assurance Co Ltd v Lamb
[13]
,
the court noted the following when addressing the potential
significance of prior awards in determining general damages:
‘…
the
trial court, or the court of appeal, as the case may be, may pay
regard to comparable cases. It should be emphasised, however,
that
this process of comparison does not take the form of a meticulous
examination of awards made in other cases in order to fix
the amount
of compensation; nor should the process be allowed so to dominate the
enquiry as to become a fetter upon the court’s
general
discretion in such matters. 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 awards
in broadly
similar cases, regard being had to all the factors which are
considered to be relevant in the assessment of general
damages. At
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 their
sequelae may have been either more serious or less
than those in the
case under consideration’.
[17]
Both parties submitted General damages case law ranging between
R350 000,00 and R530 000, 00.
[18]
Plaintiff submitted two cases,
Makupula
v Road Accident Fund
[14]
and
Vukeya
v Road Accident Fund.
[15]
The Defendant submitted the following two cases namely
Petronella
Schecutte v Road Accident Fund
2023 ZAFSHC 391
and
Donaugh
Marchie v Road Accident Fund
[16]
.
[19]
In
Ralph
v Road Accident Fund
[17]
,
an unreported judgement handed down on 03 February 2023 in the Free
State High Court Division- Bloemfontein, a 36-year-old male
mechanic
sustained a spinal injury (cervical and thoracic spine),
non-orthopaedic injuries (head and chest injuries, and lower
leg
injury), as well as a classified mild diffuse traumatic brain injury
with some cognitive and neuropsychological fallouts. The
court
awarded General damages in the amount of R600,000.00, an amount which
should be slightly more in 2024.
[20]
In
Ramolobeng
v Lowveld Bus Services (Pty) Ltd and Another
[18]
,
a 34-year-old male, vegetable packer sustained a cervical and lumber
spine as well as a head injury with a concussion. He subsequently
had
a spinal surgery where an artificial disk was inserted at levels
L3/L4 and was hospitalized for six (6) months. He suffered
from
erectile dysfunction, moderate depression, low self-esteem, and
struggled with domestic chores. He could not sit for
long,
sleep on one side, play soccer and was rendered unemployable in the
open labour market. An award of R550 000.00 was
made for
General damages, with an updated amount of approximately R818 000.
[21]
In the
Howard
v Road Accident Fund
[19]
,
decided on 30 May 2011 in the Gauteng Division-Pretoria, the
plaintiff a 61-year-old female, sustained the following injuries
a
severe compression fracture of L1, fracture of the fourth and fifth
metatarsal bones on the right side, soft tissue injury to her
neck,
injury to her chest, and injury to her sacrum. She was hospitalised
for 15 days, where she underwent a back operation.
She
suffered from low level of depression. She cannot maintain static
postures. She has become irritable. The Court awarded her
general
damages in the amount of R220 000,00. In today’s value,
the said amount can be slightly more than double, approximately
R560,000,00. Furthermore, the current Plaintiff has been diagnosed
with a mild brain injury, and a severe back injury, with significant
neurocognitive sequelae.
[22]
Despite
the cases submitted by the parties being somewhat different and
distinguishable concerning the injuries sustained, sequelae,
age, or
gender, these awards helped guide me in determining an award that is
somewhat comparable to earlier awards
[20]
.
In determining the appropriate award, I have taken into regard
Plaintiff's discomfort, pain, and suffering because of his mild
head
injury and severe cervical spine injury. According to me,
an award for General damages in the amount of R500 000.00
(five
hundred thousand rand) is justifiable, fair, and reasonable. Under
this head of damages, the Plaintiff has satisfied the
burden of proof
on a preponderance of the evidence.
Loss
of Earnings
[23]
At the time of the accident, Plaintiff was employed on a part-time
basis as a mechanical fitter at Semfra
Constructions with a basic
income of R9 702,00 per month excluding allowances
[21]
.
Ms. Chamisa-Maulana (Industrial Psychologist) postulated the
Plaintiff’s income as being above the medium earnings of
semiskilled
workers
[22]
.
Premorbid, Plaintiff would have continued his employment as a
mechanical fitter, reaching his ceiling at age 45 from where he
would
have earned an income in the upper quartile earnings of the
semi-skilled workers- with an inflationary increase to the age
of
65
[23]
.
[24]
In furtherance, Ms. Chamisa-Maulana postulated that Plaintiff is
unemployable in the open labour market due
to the injuries sustained
during the accident
[24]
.
[25]
Dr. Sibanyoni (Orthopeadic Surgeon), opined that Plaintiff’s
ability to compete in the labour market
has been compromised, and
that should Plaintiff manage to secure sedentary work, he is more
likely to retire 10 years earlier
[25]
.
[26]
According to Dr. Mazwi (Neurosurgeon), Plaintiff sequela will have a
direct impact on his earning capacity
due to the Plaintiff’s
memory disturbances, difficulty with concentration, and
headaches
[26]
.
[27]
Mr. Mphuti (Neuropsychologist-Clinical Psychologist) opined that the
Plaintiff’s neuropsychological
profile indicates that the
Plaintiff’s vocational functioning and prospects have been
negatively impacted
[27]
.
[28]
For Ms. Mashaba (Occupational Therapist), Plaintiff’s premorbid
employment is classified to fall in
the medium to heavy physical
demands
[28]
. She goes on to
state that Plaintiff is currently unable to perform his premorbid job
description, due to Plaintiff’s physical
limitations, and that
Plaintiff is not likely to get work that falls within the
sedentary/light work in the open labour market
[29]
.
[29]
Both parties made their respective submissions to their contingency
deductions premised on factual and medical
expert evidence. Mr.
Madavha centered his contingency argument on the basis that Plaintiff
is still employable post-morbid, and
thus normal contingencies should
be applied, with a zero loss of past loss of income.
[30]
Mr. Magagula submitted that Plaintiff is entitled to past loss of
earnings and future loss of earnings with
a higher-than-normal
contingency application for Plaintiff’s future loss of income
post-accident, of about 55%. This is a
40% contingency split for
future loss of income.
[31]
Contingencies include any conceivable relevant future occurrence that
may produce harm or a portion thereof,
or which may otherwise impact
the level of the plaintiff's damage
[30]
.
[32]
The adjudication of contingencies deductions in calculating the
quantum of an amount for past and future
loss of earning ability is
multidimensional and in all probability at times conjecture.
[33]
Although the Court has broad discretion when it comes to contingency
application such discretion should consider
all pertinent facts and
circumstances of any case, thus contingencies should be based on
proven facts
[31]
.
[34]
I am of the respective view that the following contingencies should
be applied in this case:
34.1
For past loss-
uninjured earnings
, a 5% contingency deduction
should apply to R524 700,00 which equates to R498 465,00.
34.2
For
injured earnings
, 50% contingency deduction should apply
R524 700,00 which equates to R262 350,00, which gives a
total past loss of R236 115,00.
34.3
Future loss of income-
uninjured earnings,
20% contingency
deduction should apply to R4 707 700,00 which equates to
R3 766 160,00.
34.4
Injured earnings
, 50% contingency deduction should apply
4 707 700,00 which equates to R2 353 850 loss,
which gives a total
future loss of R1 412 310,00: and
34.5
The total loss of earnings past and future is R1 648,425,00.
[35]
Costs should follow suit.
ORDER
The
Defendant is ordered to:
1.
Pay the Plaintiff an
amount of R500 000,00 (five hundred thousand rand), made up of
General Damages and R1 648 425,00
(one million six hundred
and forty-eight thousand four hundred and twenty-five rand) as
compensation for future Loss of Earnings.
In total an amount of
R2 148 425,00
(
two
million one hundred and forty-eight thousand, four hundred and
twenty-five rand).
2.
Provide the Plaintiff
with a Section 17(4)(a) undertaking for as far as it has not been
done already.
3.
Pay the Plaintiff’s
agreed or taxed party and party costs, scale A, subject to the
discretion of the taxing master, inclusive
of the costs and expenses
occasioned by the consultations with the experts and their reports:
Dr.
Sibanyoni Specialist Orthopeadic Surgeon – Report dated 20 July
2022
Dr
Mazwi, Specialist Neurosurgeon – Report dated 19 July 2022
Mr.
Mashaba, Occupational Therapist – Report dated 22 February 2023
Ms.
Chamisa-Maulana, Industrial Psychologist – Report dated 14 May
2023
Mr.
Mphuti, Clinical Psychologist & Neuropsychologist – Report
dated 8 February 2023
Munroe
Actuaries – Report dated 18 May 2023
4.
Pay Interest to
Plaintiff at 11,75 % per annum should payment not be made within 180
days from the date of this Court Order.
RYNEVELDT,
AJ
Acting
Judge of the High Court of South Africa
Mpumalanga
Division, Mbombela Main Seat
APPEARANCES:
For
the Plaintiff:
Mr.
Magagula
Instructed
by:
MH
Mkhabela Attorneys
For
the Defendants:
Mr.
Madavha
Instructed
by:
State
Attorneys- Mbombela-Nelspruit
Date
of hearing:
22
May 2024
Date
of judgment:
09
July 2024
[1]
Trial
Bundle page 298
[2]
Trial
Bundle pages 306 to 309
[3]
Trial
Bundle pages 310 to 313
[4]
Trial
Bundle pages 314 to 317
[5]
Trial Bundle pages 318 to 321
[6]
Trail
Bundle pages 322 to 325
[7]
Trial
Bundle page 297
[8]
Trial
Bundle page 148
[9]
Trial
Bundle page 158
[10]
Trial
Bundle page 148 and 149
[11]
Trial
Bundle page 179
[12]
Trial
Bundle page 212
[13]
1971
(1) SA 530 (A)
[14]
2010
(6) QOD 84-48 (ECM)
[15]
2014
(7) QOD I (GNP).
[16]
(8962/06)
[2010] ZAGPJHC 100 (5 November 2010)
[17]
(3069/2018)
[2023] ZAFSHC 102
[18]
2015
(7C5) QOD 29 (GNP)
[19]
(19053/2010) ZAGPPHC 151
[20]
Protea
Insurance Co. Ltd v Lamb 1971(1) SA 530 (A) 534 to 5368
[21]
Trial
Bundle page 240
[22]
Trial
Bundle page 241
[23]
Trial
Bundle 244
[24]
Trial
Bundle page 246
[25]
Trial
Bundle page 150
[26]
Trial
Bundle pages 177-178
[27]
Trial
Bundle page 213
[28]
Trial
Bundle page 227
[29]
Trial
Bundle page 228
[30]
Erdmann
v SANTAM Insurance Co Ltd
1985 (3) SA 402
(C) and
Burns
v National Employers General Insurance Co Ltd 1988
(3)
SA 355 (C).
[31]
AA
Mutual Insurance v van Jaarsveld
1974 (4) SA 729
(A).