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2024
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[2024] ZALMPPHC 100
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Mogashoa v Road Accident Fund (836/2023) [2024] ZALMPPHC 100 (30 August 2024)
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personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:836/2023
In the matter between:
MOTABI
EMELDA MOGASHOA
APPLICANT
And
ROAD
ACCIDENT FUND
RESPONDENT
JUDGMENT
MONENE
AJ
INTRODUCTION
[1] The plaintiff
instituted action proceedings against the defendant for damages
arising from a motor vehicle collision which occurred
on 20 July
2020. Having been a passenger in of one of the motor vehicles
involved in the collision, the plaintiff had the merits
settled in
her favour intra the parties on a 100% basis.
[2] The defendant did not
defend this action at all having filed neither an intention to defend
nor a plea.
[3] The matter having
been properly set down for trial, the plaintiff proceeded before this
court per default, sought and was granted
leave to prosecute her case
in terms of Uniform Rule 38(2).
[4] It being so that the
jurisdiction of this court regarding general damages is regrettably
and unfortunately, as per precedence,
hampered by the defendant a
litigant’s failure to make an election on the seriousness of
the injuries involved
in casu
, what stands to be determined
before this court is the quantum of the plaintiff’s loss of
earnings. Ancillary thereto is
a standard prayer for an undertaking
insuring the plaintiff’s future medical expenses in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.
LOSS OF EARNINGS
[5] Under cover of
affidavit the plaintiff, pursuant to proving loss of earnings,
adduced, in brief, the following uncontested evidence:
5.1 Dr S M Tladi, an
orthopedic surgeon’s evidence was that the plaintiff suffered a
head laceration and soft tissue injuries
on her right leg and her
back. The extent of the injury on the plaintiff’s head was
deferred by this expert to the neurosurgeon.
Similarly, examinations
by an occupational therapist and an industrial psychologist were
recommended by Dr Tladi.
5.2 A neurosurgeon, a Dr
M P Seroto’s testimony was to the effect that the plaintiff
sustained a mild traumatic brain injury
which led to
short-temperedness, memory impairments, headaches and post-traumatic
stress disorder. According to this witness other
key sequelae of the
mild traumatic brain injury on the plaintiff were diminished
cognitive abilities manifesting as below average
abstract reasoning,
working memory and concentration. Opining that the accident had left
the plaintiff with a whole person impairment
of 20% Dr Seroto further
concluded that, “
new or worsening of neurocognitive and
psychosocial sequelae may occur at a later stage.
”
5.3 The key take home
from the expert opinion evidence of Dr Mathews Katjene can be summed
in the following quote from his report:
“
The
injuries sustained have negatively impacted her neuropsychological
and neurocognitive functioning with consequent adjustment
difficulties.
She
experiences poor quality of life due to the disturbances of moderate
to severe post-concussion symptoms…
”
5.4 Ms Boikhutso Molwana,
an occupational therapist opined that the plaintiff who had at the
time of the accident been employed
seasonally as a packer and was
post the accident unemployed after struggling to work after only a
week of getting back, is expected
to have difficulties performing
occupations requiring physical demands. Noting that the plaintiff
had, during recovery post the
accident, not been remunerated this
expert recommended that allowances be made for past loss of income. A
further opinion from
this witness was that the plaintiff is, post the
accident, only expected to be able to perform jobs within the
sedentary to light
with reasonable accommodation and sympathy from
employers.
5.5 The Industrial
Psychologist, Ms Danushka Jenkins observing that the plaintiff, a
grade 10 drop out, did not aspire furthering
her studies neither
before or post the accident and rather aspired to remain a general
worker at least and a spaza shop owner at
best, opined that the
plaintiff deserved to be supported with her ambitions at her chosen
level. She found that both past and future
loss of earnings were
applicable to the plaintiff’s situation. This witness went on
to opine as follows:
“
The
writer anticipates that the claimant’s behavioral difficulties
will impede her ability to pursue job opportunities and
may lead to
strained relationships with colleagues and superiors, making her less
desirable for promotional opportunities. Furthermore,
impaired
motivation could result in decreased job performance, exacerbating
her anxiety levels.
These challenges are
likely to hinder the claimant’s career advancement, as
cognitive functioning limitations increase the
likelihood of errors
in her work, potentially leading to disciplinary action…
Additionally,
requiring workplace accommodations/sympathetic employment places the
claimant at a disadvantage, as it entails higher
costs for the
employer and may not fully alleviate her efficiency deficit compared
to uninjured peers. This poses a risk to her
employment stability.”
5.6 Anchoring on the
heels of the above expert evidence, Namir Waisberg, an actuary
computed the plaintiff’s total loss of
earnings at
R1 207 192.00 made up of R136,873.00 past loss and future
loss at R1 070 319.00. These figures
were arrived at after
the factoring in of 5 percent contingency on past loss and 15 percent
on future loss.
[6]
The approach in assessing loss of earnings can be put no better than
it was stated in
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...”
[7] The closest this
court has to seers, soothsayers and oracles into predicting the
future and coming up with fair speculated award
for loss of earnings
are the experts whose evidence I referred to supra. Unless their
opinions are vitiated by lack of logic or
by irrational reasoning, I,
as a layman in their fields of wisdom, may not arbitrarily reject
their evidence. That situation of
accepting their evidence as is
obtains more in the backdrop of that evidence not being countered by
anything from the defendant.
[8] The summary of expert
evidence led before me above, which evidence I have no reason nor
inclination to deviate from, is, in
my view, sufficient determinant
of the quantum opined on loss of earnings. Given the well-documented
sequalae of the injuries suffered
by the plaintiff, particularly the
cognitive impairment as gleaned from the neurosurgeon’s
evidence, the more than fourty
year life-expectancy for the plaintiff
given her age of 37 at the time of the accident and her compromised
employment potential,
I cannot fault the computations arrived at by
the actuary.
[9] Equally, given the
plaintiff was only seasonally employed and was unlikely to get any
better employment had the accident not
happened, her being rendered
an unfair labour competitor by the accident and general uncertainties
around and about life, I find
the standard contingencies of 5 and 15
percent applied by the actuary to be fair and reasonable.
[10] Accordingly, I am
persuaded to award the plaintiff general loss of earnings in
accordance with the computations of Mr Namir
Waisberg.
FUTURE MEDICAL
NEEDS
[11] According to the
Orthopaedic Surgeon the plaintiff might need physiotherapist
intervention in the future.
[12] The neurosurgeon
predicts a future need for psychotherapy, physiotherapy, headache
treatment for three to five years and general
practitioner treatment
for three years.
[13] According to the
clinical psychologist the plaintiff will in future need the services
of a clinical psychologist, an occupational
therapist, an
ophthalmologist, an audiologist and may need to be evaluated by a
specialist psychiatrist.
[14] As per the
occupational therapist the plaintiff will benefit from
musculoskeletal rehabilitation offered by a host of medical
practitioners and from Biokinetics. This witness also recommended the
provision of assistive devices such as a shopping bag on
wheels and a
custom-designed trolley.
[15] Accordingly, I do
not struggle to find that a case for an undertaking for future
medical expenses has been successfully made.
ORDER
[16] Resultantly, I make
the following order:
[16.1] The defendant is
liable for 100 percent of the plaintiff’s proven damages.
[16.2]
The defendant shall pay an amount R 1 207 192.00(
ONE
MILLION TWO HUNDRED AND SEVEN THOUSAND ONE HUNDRED AND NINETY-TWO
RANDS ONLY
) as loss
of earnings as damages for injuries suffered in the accident
implicated herein.
[16.3] The amount stated
supra at 16.2 shall be paid into the infra-mentioned trust account
within 180 days by direct transfer:
ACCOUNT HOLDER:
RAMAESELA MPHAHLELE ATTORNEYS
BANK: FNB
ACCOUNT NUMBER 6[...]
BRANCH CODE: 251037
REFERENCE NUMBER:
RMA/00064/RAF
[16.4] Should the
Defendant fail to make payment as per 16.2 and 16.3 above, the
defendant shall be liable for the amount due with
interest computed
at the prescribed rate from the date of mora to date of final
payment.
[16.5] The issue of
general damages is postponed sine die.
[16.6] The defendant
shall furnish the plaintiff with an undertaking in terms of section
17(4)(a) of Act 56 of 1996 for the costs
of medical treatment arising
out of the injuries sustained by him in the motor vehicle accident in
casu within 30 court days of
this order.
[16.7] The defendant
shall pay the plaintiff’s taxed or agreed to party and party
costs on a high court scale which costs
shall include:
16.7.1 Costs of Counsel
on scale B in terms of Rule 67A
16.7.2 The costs
attendant to obtaining the expert reports of Dr. S M Tladi, Dr M P
Seroto, Dr M Katjene, Ms Boikhutso Molwana,
Ms Danushka Jenkins and
Mr Namir Waisberg.
[16.8] Should the
defendant fail to pay the costs amount timeously; the plaintiff shall
be entitled to recover interest thereon
on the prescribed rate of
interest from the date of allocator to date of final payment.
MALOSE S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 22 May 2024
Judgment delivered
on
: 30 August 2024
For the
Plaintiff
: Adv. L Haskings
: Instructed by
Ramaesele Mphahlele Attorneys
: Tel: - 015 590
0476
: Email:
ramaesele@ramaeseleattorneys.co.za
masholabs@gmail.com
For the
Defendant
: No appearance