About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 77
|
|
Tlakola v Road Accident Fund (2747/2022) [2024] ZALMPPHC 77 (25 July 2024)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO
DIVISION,
POLOKWANE)
CASE
NO:2747/2022
REPORTABLE:
YES
/NO
OF
INTEREST TO THE JUDGES:
YES
/NO
REVISED
Signature:
Date: 25 July
2024
In
the matter between:
TLAKOLA
MARY
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
MO
NENE
AJ
[1]
On 12 April 2021 the plaintiff, a major female educator, was a
driver of a motor vehicle which collided with another on the D19
public road in the Jerusalema area within the geographical area of
this court.
[2
]
On being admitted at Medi-Clinic hospital in Polokwane she was
determined to have suffered a pilon fracture of the right ankle,
right distal fracture, a back contusion and experiencing
thoracolumbar spine pain.
[3]
In the aftermath 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
having
neither entered an appearance to defend nor a plea.
[5
]
The matter served before this court in default with the plaintiff
praying that I determine the plaintiff’s general damages,
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. Merits
or
liability had been finalized 100 percent in plaintiff’s favour
per order of Kganyago J dated 1 August 2023. This court
derived
jurisdiction to entertain general damages from another order per
Kganyago J in the wake of which the defendant had failed
to decide on
the seriousness of the plaintiff’s injuries pursuant to a
Regulation 3(3)(c)
compulsion.
[6]
T
o attend to the issues which lay before me for determination
the plaintiff sought and was granted leave to prosecute her case on
paper in terms of Uniform
rule 38(2).
LOSS
OF EARNINGS
[
7]
As already alluded to supra the main take homes as to the injuries
suffered by the plaintiff in the injury were a right distal
tibia
fracture and a back contusion. This was testified to by Dr Peter
Kumbirai, the orthopedic surgeon who went on to indicate
that part of
the treatment received by the plaintiff was open reduction and
internal fixation of the right pilon with plate and
screws. The
sequelae of the injuries suffered manifested, according to this
expect, in the form of her having problems in engaging
normally in
activities which require prolonged standing, walking and lifting of
heavy weights as she used to pre-morbid.
[
8]
The occupational therapist, Mabote’s evidence was that the
plaintiff has a limited range of right ankle movement, cannot
balance
on the right leg unsupported and has difficulty performing erstwhile
simple tasks. It was opined further by this witness
that although the
plaintiff can still meet (albeit with pain and difficulty) the needs
of her job as an educator her impairment
will increase as time goes
and as she ages such that she may be forced into an early retirement
which at the ages of 50 or 55 may
result in her suffering total loss
of income.
[
9]
Siphesihle Mkabile, an industrial psychologist, expertly opined that
post-morbid the plaintiff struggles to stand or sit and
walk for
longer periods, complains of pains which make her take leave from
work often and struggles to finish and submit work on
time. This
expert’s evidence in sum is captured in the following words at
the conclusion of her report:
“
The
writer opines that this accident has rendered Ms Tlhakola an unequal
competitor for gainful employment as well as much more vulnerable
employee having to compete with well-bodied individuals for
employment. As much as Ms Tlhakola is still employed, her efficiency,
effectiveness and productivity have been jeopardized because of the
accident in question, and simply implies that any increase
to her
current earnings will not occur except through inflation.”
[1
0]
Armed with all the above background information and expert opinions
Robert Koch of Koch Consulting Actuaries, an actuarial scientist,
gave evidence of his computations, the long and short of which was a
total loss of earnings of R1 653 771.00 to which no
contingencies were factored.
[1
1]
In the backdrop of the above uncontested expert evidence, I must
determine loss of earnings suffered by the plaintiff in respect
of
which he lodestar to a proper approach remains, in my view,
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.”
[1
2]
I am unable to fault the expert evidence led before me in any manner
and readily accept that evidence without any reservations.
What then
remains for me is to determine whether in my discretion,
contingencies must be applied to the amount of loss of earnings
arrived at, at the tail-end of the reports or not. That is the case
it being trite that the factoring in of a contingency percentage
is a
purely discretionary matter.
[1
3]
Counsel for the plaintiff submitted that considering the age of the
plaintiff who is in her early fifties the contingency to
be factored
in must be lower than that of persons of younger age. Submitting that
on the rationale of
Bee v RAF
[2018] (4) SA 366(SCA)
at para 116
and
RAF v Kerridge
2019 (2) SA 233(SCA)
at para 44,
he
proposed loss of earnings at R1 323 016,80 being a sum
arrived at on factoring a five percent contingency deduction
on past
loss and a fifteen percent contingency deduction on future loss of
earnings.
FUTURE
MEDICAL TREATMENT
[1
4]
According to the orthopedic surgeon’s evidence the plaintiff
still needs treatment in the form of pain management, physiotherapy,
and rehabilitation.
[1
5]
Given the back pains which according to the occupational therapist
will get worse with time exacerbated by aging, it cannot be
gainsaid
that the plaintiff will, going forward, need medical attention.
[
16]
In those premises a case for an order compelling an undertaking for
medical expenses in the future has been mounted successfully.
GENERAL
DAMAGES
[
17]
It is so that I have a wide but precedence guided discretion to award
a plaintiff compensation for general damages. That discretion
is as
per
NK obo ZK v MEC for Health, Gauteng ZASCA 13(15 March 2018)
para 9
guided not by what the money will be used for but by loss
of amenities of life and his pain and suffering.
[18]
I am alive to the fact
that past awards are merely a guide and
are not to be slavishly followed but am equally counselled by
Kganyago J’s words in
Marakalala Hendrick v The Road
Accident Fund (1382/2014) ZALPPHC (04/06/2019) at para [18]
that
where the sequelae are substantially similar, awards should be
consonant with one another.
[19]
In arguing for
general damages of R900 000.00 counsel
for the plaintiff referred this court
Mokwena v RAF (75931/2017)
[2020] ZAGPPHC 320(3 July 2020)
where a right humerus fracture
and a left fibula fracture attracted R850 000.00 in general
damages. He also referred me to
Jessica Louise Wooley (3123/19 P)
KZN Pietermaritzburg (5 August 2022)
where a tibia and fibula
fracture also attracted an award of R850 000.00.
[20]
In my view in both the two matters referred to by counsel for the
plaintiff as comparators the plaintiffs presented with injuries
and
sequelae sharper than those of the plaintiff in
casu.
Similarly, the plaintiff
in casu
is of much more advanced age
than the plaintiffs in those matters mitigating for a shorter span of
loss of amenities of life given
the life expectancy. It is also no
small measure to be considered that the plaintiff in casu is still
capable of proceeding with
her pre-morbid work and will have her
pains on the fracture and on her back adequately ameliorated by pain
management catered for
in the future medical expenses undertaking
reflected upon
supra
.
[21]
All this, in my view, militates for an award far below those
in the comparative awards referred to by counsel for the plaintiff.
That amount in my view, given the mild sequelae in this matter, which
extend not much higher than pain in the arm and on the back,
is an
amount of R500 000.00.
[22]
In the result I make the following order:
2
2.1
The defendant shall pay the plaintiff a total sum of R1 823 016.80
(
ONE MILLION EIGHT HUNDRED AND TWENTY-THREE THOUSAND SIXTEEN RANDS
AND EIGHTY CENTS ONLY
) computed from R500 000.00 general
damages and R1 323 016.80 in respect of the loss of
earnings suffered by the
plaintiff in relation to the motor vehicle
accident in
casu.
2
2.2
The amount in order number 22.1 above shall, within 180 days from
date of this order, be paid by direct transfer into the trust
account
of Ishmael Phala Attorneys the details of which shall be provided to
the defendant within 14 days of this order.
2
2.3
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.
2
2.4
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.
2
2.5
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.
2
2.6
The plaintiff shall, if the parties disagree 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.
MALOSE.
S.
MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 17 May 2024
Judgement
delivered on
:
24 July 2024
For
the
Plaintiff
: Adv. JLH Letsoalo
:
Instructed by
Ishmael Phala Attorneys
:
Tel: - 015 295 5355
:
Email: phalaattorneys@webmail.co.za
For
the Defendant
: No appearance