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[2024] ZAFSHC 176
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Motebele v Road Accident Fund (5413/2016) [2024] ZAFSHC 176 (4 July 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
Case No:
5413/2016
In
the matter between:
TEFO
OUPA MOTEBELE
Plaintiff
And
THE
ROAD ACCIDENT FUND
Defendant
CORAM:
HEFER AJ
HEARD
ON
:
13, 14 FEBRUARY 2024 AND 8, 9 APRIL 2024
DELIVERED
ON:
4
JULY 2024
[1] The
Plaintiff, an adult male, 29 years of age, has instituted action
against the Defendant, for damages and
ancillary relief arising from
a motor vehicle collision which occurred on 1 November 2015. At the
time of such accident the Plaintiff
was a passenger in one of the
vehicles that were involved in the accident.
[2] In
terms of an order of court dated 13 June 2017, made by agreement,
inter alia
:
(i)
the Defendant was held liable to pay 100% of the Plaintiff’s
proven or
agreed damages; and
(ii)
the issues of merits and quantum have been separated in terms of Rule
33(4) of the
Uniform Rules of Court.
[3] The
matter served before me in respect of the quantum of Plaintiff’s
claim.
[4] A
number of expert witnesses as well as the Plaintiff himself presented
the evidence in person before court.
Plaintiff
– Mr Motebele
:
[5]
According to the Plaintiff, he was in Grade 10 when he incurred the
injuries during the accident. After the
accident he attempted to
return to school and complete his schooling education. However, he
was told that he had to re-write an
exam which he was not able to do
because he was wearing a neck collar. He was told to return to school
after he recovered from
his injuries. Because of the fact that he
fatigued easily and felt dizzy, he eventually dropped out of school.
[6]
After school he looked for work and was able to attain employment
during 2017 at Chem Bric Packing. His job
entailed packing stock such
as cooking commodities.
[7] The
Plaintiff testified that he was not able to continue with this
employment for more than a month because
of the pain he experienced
in his back and spinal cord.
[8]
Later he tried to do gardening but again struggled because of his
back pain. He testified that he still experiences
pain in his neck as
well as left shoulder. He consulted with a doctor who had prescribed
certain medications. Currently, he is
not looking for work due to the
pain which he experiences in the neck and the head.
[9] The
Plaintiff testified further that he has lost consciousness at the
scene of the accident and only regained
his consciousness at the
hospital. In this regard he was extensively cross-examined whereas
the relevant hospital records indicate
that upon his arrival at
hospital, he was fully awake. He was further confronted with the fact
that according to the hospital records,
he did not incur a head
injury during the accident.
[10] As far as the
Plaintiff is concerned, he impressed as a reliable and credible
witness. At this stage I wish to commend
the Plaintiff for his
efforts to obtain employment in spite of the difficulties he
experienced in his physical well-being. The
fact that according to
him he has lost consciousness at the scene of the accident, which is
contrary to the hospital records, may
be attributed to the state of
shock at that stage as confirmed by the Plaintiff himself upon
questions put by myself to the Plaintiff.
The aspect of loss of
consciousness will be dealt with later herein.
Mrs
R du Plessis (Neuropsychologist)
:
[11] Mrs Du Plessis
compiled two medico-legal reports, the one being the original dated
21 February 2020 and the second an
addendum thereto, dated 23 January
2024. It appears that the reason for the addendum was the length of
time which expired since
the first report had been compiled.
[12] Mrs Du Plessis
had been instructed to give an opinion on the extent and severity of
any possible neuropsychological
sequelae
resulting from
Plaintiff’s injuries. The neuropsychological assessment also
aims to determine the presence and the causes
of possible deficits in
cognitive functioning as well as possible mood and behavioural
changes and any future implications.
[13] Mrs Du Plessis
referred to the fact that according to Dr Mutyaba, in an addendum
medico report dated 18 January 2024
(which will be dealt with
hereunder), the Plaintiff suffered a mild concussion / traumatic
brain injury (TBI) in the accident.
Furthermore, it was indicated
that the Plaintiff has sustained a whiplash neck injury as well.
[14] Regarding the
nature and severity of the alleged head injury sustained by Mr
Motebele in the accident, the following
points were considered by Mrs
Du Plessis:
(i)
Mr Motebele denied an impact on his head as a result of the accident;
(ii)
Mr Motebele reported a loss of recall of events after the impact
until he woke up
in hospital (the hospital records from the Pelonomi
Hospital indicate that he was treated in the emergency unit only and
was discharged
home on the same day);
(iii)
The Pelonomi Hospital records do not indicate any need for
investigations of the
head or brain after the accident;
(iv)
The information made available at the time of the assessment by Mrs
Du Plessis was in keeping
with the opinion of the neurosurgeon in
that Mr Motebele sustained a mild head injury as a result of the
accident (an injury of
this nature would not usually be expected to
lead to significant or long-term changes in neuropsychological
functioning).
[15] As far as the
Plaintiff’s pre-morbid functioning is concerned:
(i)
Mr Motebele indicated that he had not been
hospitalized before the accident;
(ii)
The Plaintiff has no family history of
illness such as diabetes, heart conditions or epilepsy;
(iii)
He has never been prescribed chronic
medication;
(iv)
Mr Motebele indicated that he completed
Grades 1 to 7 at school and failed Grade 7 after which he was
repeating Grade 7 during 2010
at the age of 16 years;
(v)
Mr Motebele stated that he passed Grade 8
but repeated Grade 9 twice, then failed Grade 10. He was repeating
Grade 10 when he was
involved in the relevant motor vehicle accident;
(vi)
According to Mr Motebele at the time of the
accident he already struggled with concentration and memory
difficulties;
(vii)
He indicated that pre-morbid he did not
experience significant problems with planning and organising tasks;
(viii)
Before the accident he was a social
individual who enjoyed positive interactions with friends and most of
his family members;
(ix)
After the accident he became easily
irritable, was short-tempered and suffered mood swings; and
(x)
In summary, Mr Motebele described a
pre-accident emotional vulnerability that it appears that he had the
emotional resilience to
cope with the stressors from his environment.
[16] Post-morbid:
(i)
the Plaintiff reportedly had been
experiencing pain in his neck, and he explained that the pain extends
to his back and shoulders;
(ii)
he reported experiencing pain in his left
shoulder and upper back;
(iii)
he experiences fatigue during the day about
twice a week (he struggles to sleep at times, due to the pain and his
thoughts about
the accident);
(iv)
the Plaintiff described headaches since the
accident with dizziness that affects his balance;
(v)
he uses analgesic medication when
experiencing pain; and
(vi)
in summary, the Plaintiff’s objective
reporting suggests significant physical pain and fatigue that had an
intrusive impact
on his everyday functioning and physical ability.
[17] Mrs Du Plessis
comments as follows:
“
Mr
Motebele’s subjective experience of chronic pain appears to
have a negative influence on several aspects of his life. It
appears
that he finds the pain and fatigue unbearable. His pain experience is
probably amplified by personal, emotional and situational
factors
such as stress.”
[18] According to
Mrs Du Plessis’ report:
(i)
After the accident Mr Motebele’s
concentration and memory difficulties became worse;
(ii)
He reportedly, occasionally forgets
instructions;
(iii)
The Plaintiff is forgetful of
conversations.
[19] In summary, Mr
Motebele subjective reports confirmed with collateral information
points to changes in his cognitive functioning.
[20] It also
appears that the Plaintiff had also been involved in a motor vehicle
accident during 2010. It appears that the
injuries which the
Plaintiff apparently had sustained during 2010 have been taken into
consideration by Mrs Du Plessis in her assessment
of the Plaintiff.
[21] As far as the
Plaintiff’s intellectual and cognitive ability are concerned,
Mrs Du Plessis opined:
(i)
Based on the Plaintiff’s family
background, his educational and work history as well as his
performances in the psychometric
tests, his pre-morbid intellectual
and cognitive potential probably fell in the below average to average
ranges;
(ii)
The Plaintiff performed below the expected
limits in most domains of cognitive functioning that were assessed –
he displayed
a poor ability to sustain attention and work memory
ability.
[22] According to
Mrs Du Plessis’ observation the Plaintiff’s
neurocognitive profile to a large extent reveals
pre-existing
cognitive difficulties.
[23] Mr Motebele’s
level of neurocognitive, neurobehavioral and neuropsychiatric
functioning was clinically evaluated and
assessed using psychometric
tests and personal interviews. Collateral information was obtained
and was integrated into her report
where relevant.
[24] Based on his
personal and familiar educational background, and his performances in
the psychometric tests, his pre-morbid
intellectual and cognitive
abilities probably fell in the below average to average ranges. He
failed Grade 7, Grade 9 (twice) and
Grade 10 before the accident. He
struggled at school and experienced concentration and memory problems
already before the accident.
At the time of the assessment, Mr
Motebele was repeating Grade 10. This was of course in fact
post-morbid.
[25] As far as the
first previous motor vehicle accident is concerned, Mr Motebele
described occasional headaches and pain
in his left foot after the
first accident. He indicated that he was healthy and physically fit
for the most part before the second
accident.
[26] Information
made available during both assessments by Mrs Du Plessis indicates
that Mr Motebele sustained a mild head
injury as a result of the
accident. This would in general not be expected to result in
significant or long-term neuro-psychological
changes. This was in
keeping to a large extent with Mr Motebele’s clinical
presentation. His clinical presentation is considered
to reflect his
pre-morbid cognitive functioning, the impact on physical
sequelae
of the accident and his emotional response to the traumatic event on
different areas of his functioning.
[27] Mr Motebele
described changes in his cognitive functioning after the accident.
Collateral resources also noted forgetfulness
and reduced
concentration abilities on his part. She however opines that Mr
Motebele’s post-accident neuro-cognitive profile
probably
reveals the exaggeration of pre-morbid concentration and memory
difficulties.
[28] Mrs Du Plessis
opines that the Plaintiff’s physical difficulties probably will
impact his work speed.
[29] Mrs Du Plessis
opined that the Plaintiff has suffered significant psychological
distress with permanent losses as a result
of the accident. However,
his involvement in a previous vehicle accident and a problem of
psychological vulnerability related to
difficulties in his childhood
may have compounded his emotional distress following the accident. Mr
Motebele’s psychological
prognosis is considered related to his
physical prognosis and lack of employment. Ongoing physical
complaints will probably serve
to obstructive resolution of his
psychological distress.
[30] The details
about the Plaintiff’s physical complaints and their relation to
the accident appear in the reports
of the medical experts and the
medical records according to Mrs Du Plessis. Subjectively, Mr
Motebele described ongoing physical
limitations and pain in his neck
with fatigue, sleep difficulties and headaches that are accompanied
by dizziness. He is not able
to perform heavy work tasks.
[31] Mrs Du Plessis
recommended that an industrial psychologist should evaluate the
extent to which the neuropsychological
problems of Mr Motebele will
be tolerated in his work environment.
[32] According to
Mrs Du Plessis, the Plaintiff reports experiencing headaches that
causes dizziness and confusion. The pain
originates from the back of
his neck, travels down his spinal cord and affects his left shoulder.
He reports that he rarely experiences
headaches that are not
associated with neck pain spreading.
[33] According to
Mrs Du Plessis, this headaches and associated pains can be associated
with the whiplash injury which the
Plaintiff has sustained during the
accident. The reason for this finding by Mrs Du Plessis is that after
the first accident during
2010, the Plaintiff had no complaints of
backpain. It was only after the second accident.
Dr
D.K Mutyaba (Neurosurgeon)
:
[34] According to
the evidence presented in Court personally, as well as the
medico-legal report compiled by Dr Mutyaba, the
main complaints of
the Plaintiff which started after the accident are:
(a)
neck pain (which worsens in extremes with
range of movement);
(b)
left shoulder pain (he can no longer lift
heavy objects overhead);
(c)
right hand pain (associated with numbness);
and
(d)
headaches (over the occipital region and
throbbing in nature).
[35] Special
investigations with reference to X-rays taken on 27 September 2015 of
the chest, left upper extremity, left lower
extremity, cervical,
thoracic and lumber spine and pelvis revealed no abnormalities.
[36] Dr Mutyaba
reported that the clinical notes reported no loss of consciousness
(LOC), but the Plaintiff had informed him
that there had been a brief
period of LOC as he does not remember how he got to the hospital.
[37] The Plaintiff
was diagnosed with multi soft tissue injuries in particular a painful
cervical spine. The initial radiological
investigations reported no
abnormalities. The Plaintiff was discharged home in a soft neck
collar and follow-up reviews followed
at the out-patient department.
[38] The Plaintiff
attended several follow-up appointments and Dr Mutyaba reports as
follows:
“
Mr
Motebele was supposed to have had a CT scan cervical spine on
13/12/2015. The result of the scan is unavailable to me.”
[39] Of importance
is that the Plaintiff also suffered a whiplash neck injury. Dr
Mutyaba opined that the Plaintiff suffered
at least a mild concussion
/ traumatic brain injury (TBI) in the accident. This assessment is
based on the history and mechanism
of the injury in that the
Plaintiff complained of posterior neck pain immediately after the
accident which has persisted up until
the assessment by the
neurosurgeon.
[40] According to
Dr Mutyaba, a diagnosis of concussion can be made even in the absence
of LOC. The neck pain of which the
Plaintiff is complaining of can be
attributed to the whiplash injury suffered in the accident.
[41] Dr Mutyaba
refers to the following as contained in the report by Mrs Du Plessis:
“
A
healthy neuropsychological status requires healthy and unaffected
neurocognitive, neurobehavioral and neuropsychiatric functioning.
Mr
Motebele revealed below average performances in most domains of
cognitive functioning which probably reflects his pre-morbid
level of
functioning. He revealed significantly below average performances
which were not anticipated and probably reflect the
exacerbation of
pre-existing difficulties. His neurobehavioral and neuropsychiatric
functioning have been affected by the outcome
of the accident and
impact his emotional resilience and emotional well being. The
cumulative influence of these components leaves
him with a
compromised neuropsychological status, and more particularly, that he
will not function on his pre-accident work level
without putting in a
deliberate effort. In the long run, his emotional vulnerability, his
physical problems and his loss of mental
acuity could put at risk his
drive, a stable work record and positive interpersonal
relationships.”
[42] Dr Mutyaba’s
diagnosis of the Plaintiff’s brain injury as a mild traumatic
brain injury (TBI) / concussion
was based on the alleged “
loss
of consciousness”
and the acceleration / deceleration
forthwith in play when the Plaintiff incurred the whiplash injury.
This aspect will be dealt
with hereinlater.
[43] During
cross-examination, Dr Mutyaba was confronted with the fact that
according to the hospital records, with reference
to the GCS levels
of the Plaintiff at the scene of the accident as well as upon arrival
at the hospital, the Plaintiff did not
loose consciousness but was
indeed fully awake. Dr Mutyaba however maintained that even if there
was no LOC, the whiplash injury
can
cause the brain to impact
inside the skull leading to a concussion. During
cross-examination, Dr Mutyaba was further confronted
with the fact
that he should have obtained a CT scan himself and that in the
absence of the result of any CT scan at any stage,
a diagnosis of a
mild traumatic injury cannot be made. To this he responded, a
concussion is a clinical diagnosis and that the
absence of imaging
does not sway his diagnosis. According to Dr Mutyaba, he had “
enough
evidence”
to make his diagnosis.
Ms
L Pretorius (Occupational Therapist)
:
[44] According to
Ms Pretorius, her assessment of the Plaintiff has shown,
inter
alia
, that the Plaintiff has severely restrictive neck range of
movement and mildly restricted left shoulder range of movement was
observed.
The Plaintiff’s posture assessment revealed
abnormalities, i.e. elevated left shoulder, forward neck flection and
tilting
of the neck to the left. His left-hand grip strength tested
below the norm for his age and gender.
[45] In terms of
sitting endurance, the Plaintiff is restricted to occasional sitting.
He would require frequent positional
changes from static positions as
well as ergonomic seating.
[46] As far as the
Plaintiff’s physical abilities are concerned, Ms Pretorius
opined that based on mobility and postural
abilities, the Plaintiff
is not suited for work tasks exceeding sedentary to occasional light
demands. He is restricted to sedentary
load handling demands. The
Plaintiff is according to her, physically compromised because of the
injuries he sustained in the accident.
[47] As far as the
Plaintiff’s residual work capacity is concerned, according to
Ms Du Plessis, prior to the accident,
the Plaintiff reported being
healthy with no complaints. Following the accident, he presented with
limitations related to the cervical
and lumbar spine. His complaints,
according to Ms Du Plessis, are consistent with the diagnosis
provided by Dr Deacon, an Orthopaedic
Surgeon, in his report, i.e.:
“
Cervical
spine injury with minor compression fractures of C5, C6 and C7 with a
high possibility for chronic pain syndrome and a
possibility of
spondylosis to develop.”
[48] Considering
the Plaintiff’s work capacity, she opined that the Plaintiff is
not suited for his past post-accident
work tasks as a general worker
(packing stock).
[49] In her opinion
therefore, should the Plaintiff obtain employment in future, it is
recommended that intermittent rest
breaks / positional changes should
be allowed to alleviate his neck and back pain while sitting for
prolonged periods. However,
she notes that rest breaks will influence
his work speed and work productivity negatively. Should his work not
allow for these
accommodations, according to her the Plaintiff’s
work longevity may be affected.
[50] Furthermore,
the Plaintiff displayed decreased work speed / accuracy during the
assessments and did not meet the norm
for open labour requirements.
With reference to the report of Mrs Du Plessis, she opines that the
Plaintiff may have difficulty
handling stressful or conflict
situations or having the motivation to work. He may also have
difficulty to remember instructions
given to him by a supervisor or
manager. Decreased work speed and accuracy may result in the
Plaintiff making errors. Other than
his decreased physical capacity,
such factors may further compromise his future employability.
[51] Based on her
assessment findings, the spinal limitations and pathology, the
Plaintiff is not suited to perform light,
medium, heavy and very
heavy physical demand work. Ms Pretorius is of the opinion that the
Plaintiff will benefit from successful
intervention (which includes
conservative, surgical and rehabilitation intervention). This
includes optimum pain management techniques,
biokinetic intervention
and a work hardening / conditioning program to enhance productivity
and improve physical endurance. However,
she notes that his
competitiveness and productivity will be affected as long as the
cervical and lumbar spine pain and limitations
persist. Furthermore,
as the degeneration of his spine progress, his physical capacity may
reduce even further. Ms Pretorius concludes
that based on the
Plaintiff’s residual work capacity, psychosocial and cognitive
difficulties, the Plaintiff’s prospect
for alternative work
options have been compromised and he is expected to have difficulty
competing for employment with uninjured
peers. According to
her, the Plaintiff’s potential to secure employment in the open
labour market is highly unlikely.
[52] In this
regard, Ms Pretorius refers to the neuropsychology report of Mrs Du
Plessis where the following is stated:
“
Mr
Motebele revealed below average performances in most domains of
cognitive functioning which probably reflects his pre-morbid
level of
functioning. He revealed significantly below average performances
which were not anticipated and probably reflect the
exacerbation of
pre-existing difficulties. His neurobehavioral and neuropsychiatric
functioning have been affected by the outcome
of the accident which
impacted his emotional resilience and emotional well being.”
Dr
Deacon (Orthopaedic Surgeon
):
[53] Dr Deacon
testified that the Plaintiff sustained a whiplash injury and
compression fractures involving the cervical vertebra
during the
accident. He testified that the degeneration in the cervical spine is
progressional and irreversible.
[54] He found that
the Plaintiff will probably experience progressively more pain in
future.
[55] The accident
has resulted in the Plaintiff’s inability to perform strenuous
physical activity such as picking up
and handling heavy objects,
performing strenuous physical activities, working with his arms in an
overhead position or performing
any manual activities associated with
mechanical neck pain.
[56] Dr Deacon
further opined that the Plaintiff is permanently compromised in his
ability to perform strenuous activities.
[57] According to
him, the injuries to the cervical area are regarded to be serious
orthopaedic injuries as the Plaintiff
is at a significant
disadvantage in his ability to compete in the open labour market. He
will find it difficult to gain employment
in the open labour market
due to the presence of permanent functional restrictions as a result
of pathology in the cervical area.
[58] According to
Dr Deacon, it is unclear whether the Plaintiff underwent CT scans in
particular of the brain as there are
no results of CT scans in the
hospital notes. However, Dr Deacon based his diagnosis of the
Plaintiff on the X-rays of the Plaintiff’s
cervical as well as
lumbar spine.
[59] Dr Deacon
concluded that the Plaintiff has sustained compression fractures to
his cervical spine and an injury to his
lumbar spine, which is
already showing signs of spondylosis. There is a possibility for
chronic pain to develop. Furthermore, the
Plaintiff will require
conservative treatment throughout his lifetime.
[60] As far as the
Plaintiff’s employability is concerned, Dr Deacon concluded
that:
“
The
patient has become an ‘UNFAIR COMPETITOR’ in the open
labour market with regards to advancement in his current career
or
gaining future employment.
He will find it
difficult to compete with other healthy subjects for work.”
Mr
B Moodie (Industrial Psychologist)
:
[61] According to
Mr Moodie, he compiled a second addendum to his original report after
he had insight in the report by Dr
Van den Bout (an Orthopaedic
Surgeon) and that of Dr Van den Bergh (an Occupational Therapist).
[62] Mr Moodie
indicated that at the time of his initial report, he considered and
opined in regards to the Plaintiff’s
progression at school. At
that stage he was not aware of the head injury or any consequences
thereof. Therefore, his initial report
was in regards to the
Plaintiff without taking into consideration such injuries.
[63] He obtained
information from the Plaintiff himself to the effect that he was not
able to pass the Grade 10 at school.
At the time when the accident
occurred, the Plaintiff was indeed in Grade 10. However, the
Plaintiff persisted and he tried again,
but again was not able to
pass Grade 10 and therefore dropped out of school. From this, Mr
Moodie concluded that the Plaintiff
is well motivated and aspired to
complete his school education. Mr Moodie refers to several factors
and concludes that he is not
convinced that the Plaintiff would have
been able to pass Grade 12. In this regard, he refers amongst others
to the fact that the
Plaintiff did not receive his education in his
mother tongue but only in the English language. For that reason, he
opined that
the Plaintiff would only have been able to do physically
oriented jobs. He would have been able to obtain employment as an
unskilled
general worker doing heavy or medium orientated work.
[64] Post-morbid,
Mr Moodie is of the opinion that Plaintiff will not be able to
sustain medium- or high load work. The determining
factors, according
to him, is the Plaintiff slight reduction in cognitive abilities, but
more importantly, the Plaintiff’s
current physical limitations.
The Plaintiff made two attempts at employment. Had he not had his
physical restraints, he would have
been able to do similar work in
future.
[65] Mr Moodie
stated in particular: “
His head injury played a minor role
in what he was supposed to do”
(with reference to the
Plaintiff’s post- morbid employment).
[66] Mr Moodie
postulated two scenarios in his report which are to be used in
determining the Plaintiff’s loss of earning
capacity.
[67] The first
scenario is based on the non-corporate labour market, keeping an
individual starting on the minimum wages making
allowance to progress
slightly to only R300.00 a day. This is in regards to an individual
who completed Grade 11 or below at school.
[68] The second
scenario is based on individuals that holds below Grade 12 school
qualification. These figures incorporate
both the non-corporate and
corporate labour market. According STATSSA, below Grade 12 school
leavers, the medium early stage of
their career is R71,000.00 per
annum, mid-state is R94,000.00 per annum and the late career stage is
R118,000.00 per annum. Although
they can progress to the upper
quartile, Mr Moodie plateaued him on the median level. In this
scenario, Mr Moodie had a more conservative
approach and kept him
functioning at somewhere between a non-corporate and corporate
sector.
Evaluation
of expert evidence
:
[69] All the
witnesses who testified on behalf of the Plaintiff were subjected to
cross-examination by Mrs
Mkhwanazi
who appeared on behalf of
the Defendant. None of these cross-examinations were however based on
any expert reports or evidence
presented to Court by the Defendant.
[70] Mr
Cross
,
appearing on behalf of the Plaintiff, argued that the relevant expert
witnesses who testified on behalf of the Plaintiff, impressed
as
credible and reliable witnesses and there is no reason why their
evidence should not be accepted. In this regard, the argument
by Mrs
Mkhwanazi
should however be considered. According to her the
finding by Dr Mutyaba that the Plaintiff sustained a head injury
cannot be accepted
as it has no factual basis. No MRI examination was
done, therefore there is no basis for his diagnosis.
[71] With this
submission I must agree. Dr Mutyaba’s diagnosis of a head
injury, is not based on any facts. In the report
by Ms Du Plessis,
she states specifically that the Plaintiff denied an impact to his
head and that the he only suffered pain in
his neck and entire body.
This is according to the Plaintiff himself.
[72] Also as far as
Dr Mutyaba’s diagnosis that the Plaintiff has incurred a mild
brain injury / concussion, his diagnosis
was merely speculative. He
based his diagnosis merely on the alleged LOC as conveyed by the
Plaintiff himself and the whiplash
injury. As it appeared from the
cross-examination of the relevant expert witnesses, with reference to
the hospital records, to
which there were no objection during the
hearing by Mr
Cross
, there were no loss of consciousness of
the Plaintiff as a result of the accident. In Dr Mutyaba’s
report he himself mentions
that the Plaintiff reports a brief period
of LOC
although it is not documented in the clinical notes
. It
can also not, on the facts before Court, be held that purely due to
the whiplash injury which the Plaintiff has sustained,
the Plaintiff
has sustained a mild brain injury / concussion. In the words of the
Neurosurgeon himself a whiplash injury
can
cause the brain to
impact inside the skull leading to a concussion. It cannot be held
that the Plaintiff indeed incurred such brain
injury / concussion.
[73] This is also
of relevance in regards to the report by Ms Du Plessis whereas she
stated:
“
According
to a neurosurgeon, Dr D K Mutyaba, Mr Motebele sustained a mild head
injury as a result of the accident with no neuropsychological
or
neurocognitive sequelae.”
In effect Ms Du Plessis
relied upon the diagnosis by Dr Mutyaba relating to the head injury.
However, in favour of the Plaintiff,
I take into consideration the
finding by Ms Du Plessis that Mr Motebele’s subjective reports
confirmed with the collateral
information point to changes in his
cognitive functioning. Cognisance is also taken that he reported
concentration and memory difficulties
already before the accident.
The Plaintiff’s emotional difficulties and his experience of
pain probably served to further
disrupt optimal cognitive
functioning.
[74] Based on the
evidence of Dr Deacon, the Plaintiff has succeeded in proving on the
balance of probabilities that the Plaintiff
had indeed incurred a
whiplash injury as well as injury to the spine during the accident.
[75] Based on the
evidence by Mrs Du Plessis, Ms Pretorius and Mr Moodie the Plaintiff
has also succeeded in proving on the
balance of probabilities that
his cognitive capabilities have been negatively affected by the
injuries which he sustained which
also impacts negatively on the
Plaintiff’s employability.
Contingencies
:
[76] I will now
deal with the contingencies to be applied in calculating the
Plaintiff’s loss of earning capacity.
[77]
It is trite law that in respect of contingencies, a Court is to make
a reasonable allowance for “
contingencies
,
the
result of which it is impossible accurately to assess”
.
See:
Smit
v Road Accident Fund
[1]
.
[78]
Deductions used in practice range from 0% - 60%; with 10% - 20%
being the most common; whilst recognition have
been given to the
principle that a short period of exposure to the risk of adversity
justifies a lower deduction than would be
appropriate to a longer
period.
[2]
[79]
In determining what percentage of contingency deductions should be
applied, the guideline of the sliding scale of a half
percent per
year to retirement age, i.e. 25% for a child, 20% for a youth and 10%
in regards to a middle-aged person may be appropriate.
[3]
[80]
In
Southern
Insurance Association v Bailey NO
[4]
the Supreme Court of Appeal stated that where the method of actuarial
computation is adopted in assessing damages for loss of earning
capacity, it does not mean that a trial judge is “
tied
down by inexorable actuarial calculations”
.
The trial court has “
a
large discretion to award what he considers right”
.
One of the elements in exercising that discretion is the making of a
discount for “
contingencies”
or “
vicissitudes
of life”
.
These include such matters as a possibility that a Plaintiff may in
the result have less than a “
normal”
expectation of life; and that he/she may experience periods of
unemployment by reason of incapacity due to illness or accident,
or
to labour unrest or general economic conditions.
[81]
In
Road
Accident Fund v Guedes
[5]
,
Zulman JA stated the following:
“
The
Court necessarily exercises a wide discretion when it assesses the
quantum of damages due to loss of earning capacity and has
a large
discretion to award what it considers right. Courts have adopted the
approach that, in order to assist in such a calculation,
an actuarial
computation is a useful basis for establishing the
quantum
of damages. Even then the trial court has a wide discretion to award
what it believes to it is right. (See, for example, the Bailey
case
and Van der Plaatz v South African Mutual Fire and General Insurance
Company Ltd).”
[82]
According to Mrs
Mkhwanazi,
with reference to the postulations
by Mr Moodie, she submitted that the first scenario by Mr Moodie
should be used in calculation
of the Plaintiff’s loss of
earning capacity.
[83] Mr
Cross
on the other hand, however suggested that the median
between the two scenarios be used in calculation of the Plaintiff’s
loss of earning capacity. According to him, with which Mrs
Mkhwanazi
agrees, as far as past loss of earnings is concerned, it is generally
accepted and the norm to apply that a contingency of 5% should
be
used and there is no reason to deviate from this. There is also no
reason why the Court should not accept the calculations of
Mr Sauer
as contained in his updated actuarial report.
[84]
According to Mr
Cross
,
with reference to the so-called “
sliding
scale”
,
referred to in the matter of
Goodall
v President Insurance Company Ltd
[6]
a contingency of 20% should be applied to the Plaintiff’s claim
for future loss.
[85]
According to Mrs
Mkhwanazi
however, a contingency deduction of
40% for pre-morbid future earnings should be used having regard to
the evidence that the Plaintiff
had pre-existing cognitive abilities.
She also refers to the evidence by Dr Deacon to the effect that some
of the recommended treatment
more specifically Rhizotomy, to the
effect that the Plaintiff can only get treatment in managing the pain
and recover in time which
would enable him to return to the open
labour market.
[86] As
far as the Plaintiff’s pre-morbid cognitive abilities are
concerned, I agree with the submission
on behalf of the Defendant.
However, as far as the treatment referred to by Mr Deacon is
concerned, it cannot be taken as a fact
that the Plaintiff will
indeed be able to return to the open labour market even with
treatment in future. I do however agree with
the submission by Mrs
Mkhwanazi
that the first scenario is to be used in calculation
of the Plaintiff’s loss of earning capacity.
[87]
Taking into consideration the submissions on behalf of both legal
representatives, I consider that a 24%
contingency deduction to the
Plaintiff’s total loss of income is to be applied. This means
that in respect of Mr Motebele’s
total amount of loss of income
when the 24% is then applied to the total amount as calculated by the
Actuary, it amounts to an
amount of
R1,963,887.89
.
[88]
In
Road
Accident Fund v Duma and 3 similar cases
[7]
the Supreme Court of Appeal ruled as follows:
“…
The
decision whether or not the injury of a third party is serious enough
to meet the threshold requirement for an award of general
damages
were conferred on the fund and not on the court. That much appears
from the stipulation in regulation 3(3)(c) that the
fund will only be
obliged to pay general damages if the fund – and not the court
– is satisfied that the injury has
correctly been assessed in
accordance with the RAF4 form as serious. Unless the fund is so
satisfied the plaintiff has no claim
for general damages. This means
that unless the plaintiff can establish the jurisdictional fact that
the fund is so satisfied,
the court has no jurisdiction to entertain
the claim for general damages against the fund. Stated somewhat
differently, in order
for the court to consider a claim for general
damages, the third party must satisfy the fund, not the court, that
his or her injury
was serious.”
[89] In the matter
of
K obo M v RAF
(
supra
) the second question posed to
the Full Bench by the then Acting Judge President, was whether a
Plaintiff is entitled to pursue
the adjudication of general damages
at trial in a default trial court in instances where the Fund has not
accepted the serious
injury assessment report. The Full Bench came to
the following conclusion:
“
It
is declared that plaintiffs in actions against the Road Accident Fund
are not entitle to pursue the adjudication of non-pecuniary
damages
in the absence of either the Road
Accident having accepted the injuries in question as constituting
serious injury as contemplated
in
section 17(1A)
of the
Road Accident
Fund Act 56 of 1996
, or of
assessment of such injuries as constituting serious injury by the
Appeal Tribunal contemplated in Regulation 3 of the Road
Accident
Fund Regulations, 2008 (as amended).”
(own
emphasis)
[90] In
accordance with the findings in both the
Duma
as well as the
matter of
K obo M v RAF
, the Plaintiff is therefore not
entitled to pursue with the adjudication of non-pecuniary damages in
the absence of the Defendant
having accepted such injuries as
constituting serious injuries.
[91]
In the unreported case of
Justine
Phiri v RAF
[8]
,
in which it was also a matter that the Fund had not accepted or
rejected the Plaintiff’s RAF4 form. In that matter Judge
Nichols indicated that it is now trite that an agreement on whether
the injury is to be regarded serious or not cannot be assumed
and a
Court which proceeds with the claim for general damages on this basis
will be exceeding its powers. The Court indeed held
that there was no
basis in which it could conclude that the RAF has accepted the
Plaintiff’s injuries as serious, thereby
entitling him to a
claim for general damages. The Plaintiff’s claim for general
damages was thus postponed.
[92] It is
therefore evident that in both the
Duba
-matter as well as the
Justine Phiri
-matter, the Court postponed the Plaintiff’s
claim for general damages. In the circumstances of the present
matter, I deem
it just and equitable that the same route should be
followed in regards to the general damages.
Therefore, I make the
following order:
Order
:
1.
Defendant is ordered to pay the Plaintiff
the amount of
R1,963,887.89
in
respect of Plaintiff’s future loss of earnings.
2.
The aforesaid amount is to be paid into the
following bank account:
Name of account
holder:
VZLR
Inc.
Name of Bank:
Absa
Bank
Account No:
0[…]
Branch code:
632005
Reference:
88790
3.
Defendant is to furnish the Plaintiff with
an undertaking in term of
Section 17(4)(a)
of the
Road Accident Fund
Act, 1996
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 service or supply on goods to the
Plaintiff arising out of the injuries that he sustained in the motor
vehicle collision
which occurred on 1 November 2015 and the
sequelae
thereof, after such costs have been incurred and upon proof thereof.
4.
In the event of the capital amount not
being paid within
180 (one hundred and
eighty) days
from date of this order,
the Defendant shall be liable for interest on the amount at the
prevailing interest rate at 11.75%, calculated
from the 15
th
calendar day after the date of this order to date of payment in line
with prevailing legislation.
5.
The Defendant shall pay the Plaintiff’s
taxed or agreed party and party costs on a High Court scale in
respect of both the
merits and quantum up to and including
9
April 2024
and notwithstanding and over
and above the costs referred to in paragraph 5.2.1 below, subject
thereto that:
5.1
In the event that the costs are not agreed:
5.1.1 the
Plaintiff shall serve a notice of taxation on the Defendant’s
attorney of record;
5.1.2 the
Plaintiff shall allow the Defendant
180 (one hundred and eighty)
days
from date of allocator to make payment of the taxed cost;
and
5.1.3 should
payment not be effected within
180 (one hundred and eighty) days
from date of allocator, the Plaintiff will be entitled to recover
interest at the prevailing interest rate on the taxed or agreed
costs
from
15 (fifteen) days
from date of allocator to date of final
payment.
5.2
Such costs will include, as allowed by the Taxing Master:
5.2.1 the
costs incurred in obtaining payment of the amounts mentioned in
paragraphs 1 and 3 above;
5.2.2 the
costs of and consequent to the appointment of counsel, including but
not limited to the following: For trial,
including, but not limited
to counsel’s full fee for
13 and 14 February 2024 and 8 and
9 April 2024
;
5.2.3 the
reasonable and taxable preparation, qualifying and reservation fees,
if any, in such amount as allowed by
the Taxing Master, of the below
experts:
5.2.3.1
Dr M.B Deacon – Orthopaedic Surgeon;
5.2.3.2
Ms Rita du Plessis – Clinical / Neuropsychologist;
5.2.3.3
Ms Liné Pretorius - Rita van Biljon Occupational Therapist;
5.2.3.4
Mr Ben Moodie – Industrial Psychologist;
5.2.3.5
Mr J Sauer – Actuary;
5.2.3.6
Dr D Mutyaba – Neurosurgeon.
5.2.4 the
Plaintiff is declared a necessary witness and therefore the
Plaintiff’s reasonable traveling expenses
to attend the trial,
as allowed by the Taxing Master.
5.2.5 the
reasonable attendance fees of the following experts:
5.2.5.1
Dr M B Deacon – 14 February 2024;
5.2.5.2
Ms R du Plessis – 14 February 2024;
5.2.5.3
Dr D Mutyaba – 8 April 2024;
5.2.5.4
Ms L Pretorius – 14 February 2024 and 8 April 2024;
5.2.5.5
Mr B Moodie – 8 April 2024.
6.
Plaintiff’s claim for general damages
is postponed
sine die
.
J J F HEFER, AJ
Appearances
on behalf of the Plaintiff:
Adv
C.G Cross
Instructed
by: VZLR Incorporated
Du
Plooy Attorneys
Bloemfontein
On
behalf of the Defendant:
Mrs
K Mkhwanazi
Instructed
by: State Attorney
Bloemfontein
[1]
2013
JDR 0902 (ECG) at par. [15]
[2]
Smit
supra
par. [22].
[3]
Smit
supra
par. [32].
[4]
1984
(1) SA 98
(AD)
[5]
2006
(5) SA 583 (SCA)
[6]
1978 (1) SA 389 (W)
[7]
2013
(6) SA 9 (SCA)
[8]
Case
No: 3448/2018, delivered by Judge T Nichols (Gauteng Division –
Johannesburg)