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2024
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[2024] ZALMPPHC 99
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Makgoba v Road Accident Fund (2121/2023) [2024] ZALMPPHC 99 (29 August 2024)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:2121/2023
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
Signature:
Date: 2024/08/29
In the matter between:
MAKGOBA MALESELA
FREDDY
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MONENE
AJ
[1] On 23 November 2021
the plaintiff, a major male person then 31 years of age, was a driver
of a motor vehicle which collided
with another on the Mandela Drive
public road in the Lephalale area within the geographical area of
this court.
[2] Consequent upon that
motor vehicle collision the plaintiff suffered an injury explained by
medicos as right distal radio ulnar
fracture.
[3] In the aftermath of
all that the plaintiff 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 questions of liability, 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 collision. A further prayer
was that I postpone the issue of
general damages sine die.
[6] To attend to the
issues which lay before me for determination the plaintiff sought and
was granted leave to prosecute his case
on paper in terms of Uniform
rules 38(2)
and
39
(1).
LIABILITY
[7] According to the only
evidence tendered before me under cover of
rule 38(2)
the motor
vehicle collision was caused by the sole negligence of the insured
driver, being the driver, whose motor vehicle rammed
into that driven
by the plaintiff, the negligence manifesting, in the main, through
failure to keep a proper lookout.
[8] There being nothing
placed before me to gainsay the evidence of the plaintiff as carried
through by both the accident report
and the
section 19(f)
affidavit,
I find no reason not to accept that evidence and find on the merits,
in favour of the plaintiff.
[9] Accordingly the
defendant who never put up any opposition to this matter from the
beginning, must be held 100 percent liable
for all proven damages
suffered by the plaintiff arising from the motor vehicle collision.
LOSS OF EARNINGS
[7] As already alluded to
supra the main take homes as to the injuries suffered by the
plaintiff in this matter was a right distal
radio ulnar fracture.
From the evidence tendered under cover of affidavit I understand that
to, in English, mean a fracture of
the hand wrist area. In this case
it was the right-hand wrist. This was testified to by Dr T A Mudau,
the orthopedic surgeon who
went on to calculate the plaintiff’s
whole-body impairment to be 4 percent. The sequelae of the injuries
suffered manifested,
according to this expect, in the form of the
plaintiff being unable to lift heavy objects and experiencing right
wrist and right
shoulder pains.
[8] The occupational
therapist, Rabelani Makuya’s evidence was first to the effect
of confirming the sequelae identified by
the Orthopaedic surgeon.
This expert further found that, “
Mr Makgoba has adequate
hand function with presence of all functional grasps
”
although experiencing deviations which denote “
inadequate
grip strength on his right hand
”. It was further opined by
this witness that the plaintiff is, post the accident, left in a
position where he can be classified
as being able to perform
sedentary to low range medium manual work as he has no capacity to
undertake full medium to very heavy
occupations.
[9] Ruwa Ntuli, an
industrial psychologist, observed and noted that the plaintiff, who
had been a taxi driver prior the accident
was post the accident
unemployed as he “did not return to work”. It remained
unclear whether not returning to work
was caused by the accident
although reference was made by this witness to the occupational
therapist’s conclusion that given
the physical demands of the
work of a taxi driver the plaintiff’s ability to do his
erstwhile work was “compromised”.
It was however this
witness’ conclusion that the plaintiff can still work as a taxi
driver. Factoring the plaintiff’s
uncorroborated but plausible
version that he earned R 4000.00 per month from his job as a
taxi driver, this witness found
that this located him above the lower
quartile of semi-skilled workers according to Robert Koch’s
Quantum Yearbook of 2021.
The expert thus further opined that it
being so that at 31 years when the accident occurred, he was in the
establishment stage
of his career he would have reached his career
ceiling earning of between median and upper quartile of semi-skilled
workers by
age 45. The expert then concluded without postulating any
different scenarios to work on that the plaintiff has suffered past
loss
of earnings as well as being likely to experience a future loss
of income.
[10] The last witness
whose evidence I considered regarding loss of earnings is Ndumiso
Mavimbela of Manala Actuaries. He based
his report solely on the
Industrial psychologist report which must be understood, as it is, to
have been premised on both the Orthopaedic
and Occupational therapist
reports. Calculating the loss from 1 June 2023 this expert expressly
stated, unlike many in his field,
that the past loss was computed
from the date of the accident up to the calculation date and further
that the future loss was computed
for the period after the
calculation date up to an unknown date in the future. Finding the RAF
cap to be having no bearing on the
results of his computations and
applying no contingencies this expert summarized his computations
pegging past loss at R83 837.00
and the net future loss at
R2 374 738.00 which when added resulted in a net loss of
R2 458 575.00.
[11]
In the backdrop of the above uncontested expert evidence, I must
determine loss of earnings suffered by the plaintiff in respect
of
which the lodestar to a proper approach remains, in my view, and
which I venture to repeat
ad nauseum
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.”
[12] I am a layman to all
the disciplines of the experts who testified. While I may not and
should not merely rubberstamp their
recommendations and must subject
them to a test of looking into the reasoning which went into their
opinions, I should not and
will not allow myself to be swayed by
maudlin alarmist sensitivities in the public domain emanating from
either the defendant in
casu which has literally abandoned and
absconded from defending these actions which flood our court rolls
daily or that of the
defendant’s apologists whose common mantra
is to see any amount having six figures as undeserved or as an
attempt by plaintiffs
to deceptively and greedily milk the “cash-cow”
that is the Road Accident Fund.
[13] An amount of two
million rands, for example, spaced out over a period of an expected
life period of 44 years for example equates
to R45 000.00 a year
which in turn amounts to about R3 700.00 a month, hardly a
largesse nor a fortune from a horn of
plenty presumed by the
chattering voices comprised in the main by those amongst us who at
times spent that monthly amount per night
at dinners or drinks
outings.
[14] Regard being had to
how the experts in casu reasoned their opinions as alluded to supra
and reflected upon in argument before
me, I cannot in anyway bring
myself to fault the expert evidence led before me 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 past and/or future loss
of earnings arrived at in casu. That
is the case it being trite that the factoring in of a contingency
percentage is a purely discretionary
matter.
[15] Without resorting to
the traditional approach in judgement writing of providing truncated
citations and quotations of previous
decisions on what contingencies
are and what purpose they serve, I understand the need for
contingencies to be informed by the
speculative nature of the work
done by the learned experts employed in the determination of quantum
which involve, in general,
looking into uncertainties such as life
expectancy, future employment or unemployment prospects, future
improvements or diminutions
in working conditions prospects and a
host of other unknown and uncertain variables such as the economic
viability of a country.
Those are factored in to either temper with
amounts postulated by actuaries downwards or upwards, although
practice has, perhaps
actuated by persuasions I lamented supra, sadly
developed to factor contingencies only to what, at first blush,
appear to be possibly
too high amount postulations.
[16] Given the age of the
plaintiff at the time of the accident which was a fairly youthful 31
years, the expected longer life span
expected still more so in the
light of the evidence of the avoidance of vices such as alcohol and
smoking by the plaintiff, the
fast depreciating value of money in our
current downward economic slide and the projections of a further
bleak economic future
which is more likely to see the plaintiff
unemployed for life than not and my supra indicated view of how
little an amount of two
million plus amounts to when spaced out over
a life-time, I am disinclined to factor any contingencies to the
amounts postulated
by the actuary in casu.
[17] That said, I however
note that the amount pleaded as future loss of earnings is at
R2 200 000.00, less than the net
future loss postulated by
the actuary. There is on record no amendment of the particulars of
claim which sought to reconcile the
pleaded amount with the amount
tendered into evidence. Parties being bound by their pleadings I
cannot and will not order an award
above what was pleaded which then
means I will put a ceiling on the net future loss of earnings at the
amount pleaded.
FUTURE MEDICAL
TREATMENT AND UNDERTAKING
[18] According to the
orthopedic surgeon’s evidence the plaintiff will continue to
suffer the inconvenience and discomfort
on his right shoulder and
wrist and will thus need pain management, reconstructive surgery for
scars and physiotherapist intervention
for rehabilitation.
[19] The Occupational
Therapist recommends 25 hours of occupational therapy intervention in
pain alleviation strategies, joint protection
principles, work
hardening and the need for a variety of assistive devices from
wheeled laundry bucket to reusable heat pads.
[20] It certainly cannot
thus be gainsaid that the plaintiff will in future need medical
attention.
[21] In the above
premises a case for an order compelling an undertaking for medical
expenses in the future has, in my view been
made.
[22] In the result I make
the following order:
22.1 The defendant is
liable for 100% of the proven damages for the plaintiff.
22.2
The defendant shall pay the plaintiff a total sum of R2 283 837.0
(
TWO MILLION TWO HUNDRED AND
EIGHTY-THREE THOUSAND EIGHT HUNDRED AND THIRTY SEVEN RANDS ONLY
)
computed from R83 837.00 in net pass loss of earnings and
R2 200 000.00 in respect of the loss of earnings being
damages suffered by the plaintiff in relation to the motor vehicle
accident in
casu
which
occurred 23 November 2021.
22.3
The amount in order number 22.2 above shall, within 180 days from
date of this order, be paid by direct transfer into the
Trust
Account
of
B
H Lebese Attorneys
the details of which
are as follows:
BANK: FNB
Account Number: 6[...]
Branch Code: 2600148
Ref:
LEB/RAF/056/2022
22.4 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.
22.5 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.
22.6 General damages are
postponed sine die.
22.7 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.
22.8 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
: 22 May 2024
Judgement
delivered on
:
29 August 2024
For the Plaintiff
: Adv. T Maluleke
Instructed
by B H Lebese Attorneys
Tel:
- 015 880 1286
Email:
info@bhlattorneys.co.za
For the Defendant
: No appearance