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[2024] ZAFSHC 174
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Shuping v Road Accident Fund (3944/2022) [2024] ZAFSHC 174 (4 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE HIGH COURT OF
SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case Number: 3944/2022
In the matter between:
TSHEDISO
JOSEPH
SHUPING
Plaintiff
and
THE
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
28,
29 November
2023
CORAM:
JORDAAN,AJ
DELIVERED
ON:
04 June 2024
[1]
On the 13th of January 2019 the plaintiff-
then a 49year old taxi-driver- was a passenger in vehicle with
registration numbers and
letters […] (the insured vehicle)
driven by Mr. Rantiti Ramokone (the insured driver), when at or near
34571, Chris Hani,
Bloemfontein, the insured vehicle collided with
motor vehicle with registration number and letters […], driven
by Mr. Matshediso
Mokoua.
[2]
The Plaintiff consequently instituted
action in terms of the provisions of the Road Accident Fund Act 56 of
1996 (RAF Act) as amended
to recover damages computed at R2 700
368,00 comprising of:
2.1
Estimated Past Hospital Medical
Expenses
R84
419,00
2.2
Estimated Future Medical and Related
Expenses.
R661 000,00
2.3
Estimated Past Loss of
Earnings
R306 936,00
2.4
Estimated Future Loss of
Earnings
R848 013,00
2.5
General
Damages
R800 000,00
[3]
At commencement of the trial the Plaintiff
submitted that the Defendant settled the merits 100% in favour of the
Plaintiff, further
that the General Damages were settled in the
amount of R600 00,00 and that the Defendant undertook in terms of
s17(4)(a) of the
RAF Act to provide for the Plaintiff's future
medical and related expenses. These submissions were confirmed by the
Defendant.
The Plaintiff submitted that the claim for past hospital
and medical expenses is abandoned.
[4]
The Plaintiff applied that the evidence of
the experts who prepared the medico legal reports of the
Plaintiff, be adduced on
affidavit in the interest of
inter
alia
saving costs, which application
was not opposed by the Defendant, the court upheld the application to
receive the evidence of Dr
Oelofse (Orthopeadic Surgeon), A Jansen
(Occupational Therapist), A van der Bijl (Earnings Expert) and W
Loots (Actuary)
on
affidavit.
[5] Dr Oelofse, the
orthopeadic surgeon, noted that according to the Plaintiff, he
suffered a fracture in 1999 for which an open
reduction and internal
fixation was done, the instrumentation remained
in
situ
and
the Plaintiff suffered no pain until the accident. Dr Oelofse reports
that the Plaintiff suffered small lacerations on his face
and
swelling of the right knee with restricted range of movement of the
knee. The X-rays revealed a right distal femur fracture.
In theater
an open reduction and internal fixation of the right femur was done.
The Plaintiff was discharged on the 11
th
of February 2019
and had a follow up appointment on the 25
th
of
February 2019 when the clips were removed and physiotherapy was done.
[6]
Dr Oelofse diagnosed the Plaintiff
with malunited distal femur fracture resulting·in:
3.1
open
reduction
and
internal
fixation
of
the
femur
(
on
top
of
previous
fracture and instrumentation)
3.2
leg length discrepancy of 3cm
3.3
painful instrumentation
3.4
painful and swollen knee
3.5
post-traumatic osteoarthritis of the
knee joint
3.6
scarring deferred to opinion of a
plastic surgeon
[7]
Dr Oelofse opines that the Plaintiff
sustained a right upper leg and knee injury from which he continues
to suffer the sequelae.
He considered that the injuries had a
profound effect on the Plaintiff's
amenities of life, productivity and working ability and will continue
to do so in the future.
Dr Oelofse opined that with successful
treatment the Plaintiff's productivity will improve, however, as the
degeneration in his
right knee progresses the Plaintiff's
productivity will decrease again.
[8]
It was the opinion of Dr Oelofse
that regardless of successful treatment, the Plaintiff will always
have a permanent deficit. Dr
Oelofse qualified the injury as serious
on the narrative test as the injury resulted in serious long-term
impairment or loss of
body function and permanent serious
disfigurement.
[9]
Anthea Jansen, occupational
therapist, observed that the Plaintiff had difficulty sitting for a
prolonged time and walked with a
limping gait and reported pain at
his left hip and right knee. He was unable to crouch due to his right
knee and was unable to
flex the right knee. Ms Jansen opined that the
Plaintiff's physical capacity
falls
within
the
sedentary
range.
[10]
The occupational therapist, reports that the
Plaintiff left school in Grade 7, was a
taxi-driver
prior
to
the
accident, but
unemployed
since
the
accident.
The Plaintiff has no other qualification.
Ms Jansen opines that the Plaintiff would be an unfair competitor
in the open labour market compared to his
uninjured
peers.
[11]
Ms Arabella van der Bijl, earnings
expert, reports that the Plaintiff completed Grade 5, was employed as
a taxi driver at the time
of the accident, receiving a salary-
according to his income certificate- of R900,00 per week in 2011 plus
benefits of R1 400,00.
He did not return to work after the accident.
She opined that it was reasonable to assume that he would have
continued as a taxi
driver for the foreseeable future.
[12]
Ms van der Bijl, reports that
according to the medical experts the claimant does not meet the
physical demands of his work as a
taxi driver, but a light/sedentary
type of work for which he has no experience. The Plaintiff was
reliant on his physical abilities
to secure and maintain employment
and will find it difficult due to his physical limitations, low level
education and limited experience
to compete with other healthy
individuals. She therefore opined that the Plaintiff will remain
unemployed for the remainder of
his working career.
[13]
Mr Wim Loots, the actuary, calculated the
estimated past and future loss of earnings based on the expert
reports of Dr Oelofse,
Ms Jansen and Ms van der Bijl as
well as the income affidavits filed in
computing his calculations. The court
directed that the past loss of income, based on the income
affidavits, be recalculated as
the basis did not mathematically
accord with the income reflected in the affidavit, a corrected Past
Loss of income was then supplied
by Counsel for the Plaintiff at
R240 492,99.
The
actuary calculated the post-morbid loss of income was at R848 013,00,
while the contingency was left for the court to determine.
[14]
Counsel for the Plaintiff submitted that
the expert reports indicate that the injury that
led
to
the
unemployability
of
the
Plaintiff
was
the
second
collision
in
2019 and accordingly, a higher contingency
deduction would not find rational basis. The Defence submitted that
the Plaintiff decided
not to continue working, he was not dismissed
and requested a higher post-morbid contingency deduction.
[15]
The Defence submitted that the Plaintiff's
work is classified as light work according to his own expert and thus
equate to sedentary
work, The Plaintiff decided to not return to
work, he was not dismissed, therefore higher contingency should be
applied.
[16]
There was no evidence led or expert reports
in opposition submitted. The court accept the opinion of Dr Oelofse,
which is uncontested
and supported by collateral information, that
the second accident in 2019 caused the injury and the sequelae that
caused the Plaintiff's
current condition. It is the opinion of the
Plaintiff's experts that the Plaintiff has a permanent deficit,
regardless of successful
treatment and will remain unemployed for the
remainder of his working career.
[17]
I
considered that the Plaintiff was 49 years at the time of the
collision and 53years old at the time of the calculation; that he
is
no longer fit for employment in the open labour market due to the
sequelae of the injuries. The actuarial calculations are based
on the
expert reports, which this court had accepted. It is trite that the
court has the discretion to determine the contingency
deduction. In
Road Accident Fund v Guedes
[1]
the court stated:
"Assessing
damages for loss of earnings or support, it is usual for
a
deduction to be made for general
contingencies for which no allowance has been made in the actuarial
calculation. The deduction
is the prerogative of the Court ...
There are no fixed rules
as
regards to contingencies"
[18]
Having regard to the circumstances of this
case as enumerated herein, I hold the view that the Past Loss of
Earnings of R240 492,99
submitted, is the actual loss of earnings
that the Plaintiff suffered due to the injuries sustained in the 2019
collision and its
sequelae. The Plaintiff is entitled to compensation
of the R240 492,99 loss suffered.
[19]
In respect to the Plaintiff's Future Loss of
Earnings calculated at R848 013,00 the Plaintiff suggested a
contingency of 15% should
court find the 1999 accident injuries
played a roll. This Court found that the sequelae suffered by the
Plaintiff was caused by
the injuries sustained in the 2019 collision.
The Plaintiff
in
casu
has
no
post-morbid
scenario as he is completely unemployable. Bearing in mind his age,
that he has no qualification or experience of any
form of sedentary
work, I therefore decided to exercise my prerogative to apply a fair,
reasonable and just contingency of 0% on
the Future Loss of Earnings.
[20]
I accordingly make the following order:
ORDER
1.
The
merits
are
settled on
the
basis
that
the
Defendant accepted
liability
for
payment of
ONE
HUNDRED
PERCENT
(100%)
of
the
Plaintiff's proven
or
agreed
damages.
2.
The
Defendant
shall,
within
FOURTEEN
(14)
days
of
this
Order,
furnish
the
Plaintiff with an undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, as amended,
for payment of
100%
of the costs of the future
accommodation of the Plaintiff in a hospital or nursing home, or
treatment of or rendering of a service
or supply of goods to the
Plaintiff arising out of the injuries that the Plaintiff sustained in
the motor vehicle collision which
occurred on the 13
th
of January 2019 and the sequelae thereof, after such costs have been
incurred and upon proof thereof.
3.
The Plaintiff's claim in respect of past
hospital and medical expenses is abandoned.
4.
The Plaintiff's claim for general damages
is settled on the basis that the Defendant pays to the Plaintiff the
amount of
Six Hundred Thousand Rand
(R600 000,00)
in full and final
settlement in respect of general damages.
5.
The Defendant
is
ordered
to pay
to the Plaintiff
the amount
of
One Million
and Eighty-Eight
Thousand
Five
Hundred
and
Five
Rand
and
Ninety-Nine
Cents (R1 088 505,99)
in
respect of the Plaintiff's claim for past and future loss of
earnings.
6.
The Defendant shall pay to the Plaintiff
the
Capital Amount of One Million and
Eighty-Eight Thousand Five Hundred and Five Rand and Ninety-Nine
Cents (R1 088 505,99)
in respect of
proven and/ or agreed made up as follows:
Loss of Earnings (Past
and Future)
R 1 088 505,99
General
Damages
R 600 000,00
7.
The aforesaid payment of the
Capital
Amount
will be made directly into the
Trust Account of the Plaintiff's Attorneys,
VENTERS
INC,
the particulars of the account
which are as follows:
Name of account holder:
[…]
Name of
bank:
[…]
Account Number:
[…]
Branch code:
[…]
Reference
number:
[…]
8.
Should payment in terms of the amount
reflecting in this Order not be made within One Hundred and Eighty
(180) days from the date
hereof, the Defendant shall be liable for
payment of interest on the said amount calculated at the prescribed
interest rate applicable
at the time, from Fourteen (14) days after
date of this Order, to date of payment.
9.
The Defendant shall pay the Plaintiff's
taxed or agreed party and party costs on a High Court scale to date
of this order, such
costs which shall include the cost of counsel for
Two (2) days and the reasonable qualifying and preparation fees
(where applicable)
of the following experts:
9.1
Dr L F Oelofse (Orthopeadic Surgeon)
9.2
A. Jansen Digby (Occupational Therapist)
9.3
A. van der Bijl (Industrial Psychologist/
Earnings Expert)
9.4
W. Loots (Actuary)
10.
The plaintiff shall allow the defendant One
Hundred and Eighty (180) calendar days to make payment of the taxed
or agreed costs
11.
No writ for costs or capital will be issued
by the Plaintiff prior to the expiry of One Hundred and Eighty (180)
days
M.T. JORDAAN
ACTING JUDGE.OF THE HIGH
COURT,
BLOEMFONTEIN
APPEARANCES:
Counsel for the
Plaintiff:
Adv K:N. Petersen
Instructed
by:
VENTERS INC
Email:
janette@vinc.co.za
Attorney
for
the
Defendant:
Ms Booysen
Instructed
by:
STATE ATTORNEY, BLOEMFONTEIN
Email
meghanb@raf.co.za
[1]
2006
(5) SA 583
(SCA)