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[2024] ZALMPPHC 101
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Mukansi v Road Accident Fund (22/2013) [2024] ZALMPPHC 101 (3 September 2024)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:22/2013
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
9Signature:
Date:
In the matter between:
OLIVER MUKANSI
PLAINTIFF
And
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
MONENE AJ
INTRODUCTION
[1] On 17 December 2011
the plaintiff, a major male farm supervisor, was a passenger in a
motor vehicle when post the excessively
speeding motor vehicle
driving into a pothole on the Nkowankowa road in Limpopo he fell off
from the bakkie onto the road.
[2] Upon receipt of
medical attention the plaintiff was determined to have suffered a
right forearm injury as well as left hip soft
injury.
[3] In the aftermath of
all that he instituted proceedings against the defendant under cover
of
section 17
of the
Road Accident Fund Act 56 of 1996
.
[4] The defendant offered
absolutely no defense to the plaintiff’s claim having failed to
file any expert reports, failing
to show up for trial despite being
properly served with a set down; all this despite initially filing a
curious plea which spoke
of failure to put on seatbelts by a
passenger at the back of an open back bakkie.
[5] The matter served
before this court in default with the plaintiff praying that I
determine the question of liability, the loss
of earnings and the
need for the defendant to be ordered regarding 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.
General damages fell to be
postponed sine die it being so that this court’s jurisdiction
thereon was ousted by the precedence-imposed
question of the
seriousness of the injuries having neither been conceded by the
defendant nor ordered by the court in terms of
regulation 3
of the
regulations of 2008 promulgated in terms of the Act.
[6] To attend to the
issues which lay before me for determination the plaintiff applied
for and was granted leave to prosecute his
case on paper in terms of
Uniform rule 38(2).
MERITS
[7]
In
Groenewald v Road Accident Fund
(74920/2014)[2017] ZAGPPHC 879(5 October 2017)
at
para 3, Mavundla J stated the following:
“
It
is
trite that the plaintiff, as a passenger claimant, need to prove only
1% negligence on the part of the driver in order to succeed
with her
claim against the defendant…”
[8] I struggle to fathom
why negligence on the part of an insured driver is, in passenger
claims, sometimes treated as some brainteaser
because, save for where
the passenger somehow took over or hijacked or interfered with the
act of a driver by perhaps contesting
over control of the steering
wheel of a motor vehicle or the acceleration, clutching or braking
system or perhaps frustrating the
driving function in any manner,
there is simply no way a passenger can be liable for a motor vehicle
accident.
[9]
In casu
I have
reflected on the elitist and third world reality-divorced notion that
perhaps the plaintiff ought to have shared some blame
for being at
the back of an open bakkie which is said to not be meant for
passengers but for parcels, as a way of thinking about
some
apportionment, but I have found it offensive to my sense of what is
just. Given the third world status of our country and
the painful
reality that is black life in this country, I cannot bring myself to
uphold a standard that seeks to suggest that poor
people have a
liberal choice to make regarding what mode of transport to use. To
some of our people the back of a bakkie is the
only choice to make
they are not to travel for tens of kilometers per foot.
[10] The insured driver
was in casu negligent not only from over speeding but also from
failing to keep a proper lookout as to have
avoided the pothole. The
plaintiff’s version on this score is unassailable more so
because it was not opposed by any evidence
by the defendant who was
virtually a no-show. The proverbial one percent negligence on the
part of the insured driver is, in my
view, proven without breaking
any sweat at all.
[11] Accordingly, I have
no hesitation in finding that the defendant is hundred percent liable
for the plaintiff’s proven
damages.
LOSS OF EARNINGS
[12] As already alluded
to supra the main take homes as to the injuries suffered by the
plaintiff in the accident were a right forearm
injury and a left hip
soft tissue injury. This was testified to by Dr Orjiako, the
orthopedic surgeon who went on to further record
the sequelae of the
plaintiff’s injuries as severe left hip pain, inability to hold
and lift heavy objects with the right
hand;all of which would persist
for the better part of the plaintiff’s life.
[13] The occupational
therapist, Dr Radzuma observed that the plaintiff who was post the
accident employed no longer as a supervisor
but a general farm worker
and further that the plaintiff has a reduced ability in the use of
his right hand as well as reduced
ability to handle prolonged
standing, stooping and squatting all of which are germane to his line
of work.
[14] Curiously though,
the occupational therapist also made findings about cognitive
deficiencies which he found to be caused by
the accident. Not only is
this court in serious doubt about how there could be a link between
the supra stated injuries with any
cognitive sequelae, but this court
is not aware of how the occupational therapist, being neither a
clinical psychologist nor a
psychiatrist, qualified to make such a
determination.
[15] Cloudious Nyahwema,
an industrial psychologist, observed the following:
[15.1] That the plaintiff
was at the time of the report in My 2024 41 years of age.
[15.2] That the plaintiff
was pre-morbid in very good health.
[15.3] That the plaintiff
only went to school up to grade 9 and dropped out due to indigency.
[15.4] That at the time
of the accident the plaintiff was employed as a farm supervisor with
total monthly earnings of R8 013,72.
[15.5] That post the
accident the plaintiff only managed to work for three months after
which he was released with pay until his
contract ended in 2017.
[15.6] That from 2019 he
was employed as a casual labourer by a municipality earning R3 000.00
until 2021 when the contract
ended.
[15.7] That at the time
of the assessment the plaintiff was employed as a farmhand earning an
amount of R4 000.00 monthly.
[16] This expert observed
further that the plaintiff complains of forgetfulness and poor
concentration span. It is not immediately
available as to whether
there is a nexus between these complaints and the accident. There, in
my view, shouldn’t be any nexus.
[17] This witness further
opined that the plaintiff will be able to still work for
approximately 36 years until he reaches his retirement
age at 65
years. A further expert opinion was that the accident will affect his
employability and functionality in the open labour
market. It was
this witness’ further expert opinion that owing to the accident
the plaintiff suffered past loss of income
and will suffer loss of
earnings in the future, that is, despite the plaintiff currently
being employed albeit at an earning capacity
much less than his
pre-morbid situation.
[18] Most instructive
about this expert’s findings are the following captured
verbatim from the report:
“
The
writer states that the plaintiff is
likely to forfeit about 5 years of earning capacity due to the
accident in question. He may
discontinue with income generating
activities at the age of 60 years.”
[19] Premising their
report solely on the industrial psychologist’s report Tsebo
Actuaries postulated a net past loss at R1 027 704.00
and a
future loss at R2 168 369.00 having factored contingencies
at 5 percent for past loss and a sliding scale of 5
to 35 percent for
future loss.
[20]
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.”
[21] While I note that
the occupational therapist opined on cognitive sequelae which do not
make sense and are outside her field
of expertise, I am unable to
find that those findings impacted on or in any way influenced the
industrial psychologist’s
determinations and the actuaries.
Nothing in the industrial psychologist’s report suggests in the
least that the opinion
therein was premised on cognitive
deficiencies. That being the case and the industrial psychologist’s
report being the only
one which served before the actuaries to help
determine their computations, I see no stain from the occupational
therapist attaching
to the actuarial calculations.
[22] All that said, I
cannot 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.
[23] Given the fact that
post the accident the plaintiff was able to work at the farm and
further that even upon being released
from work he continued to be
remunerated up to the end of his contract, albeit at a lower salary
rank than the pre-morbid one I
find that a contingency higher than
the one employed by the actuary for past loss of earnings was called
for. Afterall the uncertainties
of employment life on a contract seen
through the lense of the high unemployment rate in this country
suggests that it probably
could have been worse for the plaintiff
even if he had not been involved in the accident. Accordingly, I
would apply a 20 percent
liability to past loss of earnings, leaving
the future loss earnings as computed by the experts. That takes past
loss to R960 102,40
FUTURE MEDICAL
TREATMENT
[24] According to the
orthopedic surgeon’s evidence the plaintiff’s pain
severity is 8/10. He will need medical attention
to manage the pain
in the light of this expert’s finding that the plaintiff has
signs of permanent functional impairment.
[25] According to the
occupational therapist the plaintiff will need sessions with an
occupational therapist to improve his physical
limitations and reduce
his dependency.
[26] In those premises a
case for an order compelling an undertaking for medical expenses in
the future has, in my view, been made.
ORDER
[27] In the result I make
the following order:
[27.1] The defendant is
liable for 100% of the plaintiff’s proven damages.
[27.2]
The defendant shall pay the plaintiff a total sum of R3 128 471 .40
(
THREE MILLION ONE HUNDRED AND
TWENTY-EIGHT THOUSAND FOUR HUNDRED AND SEVENTY-ONE RANDS AND FOURTY
CENTS ONLY
) computed from R960 102,40
past loss and R2 168 369.80 future loss, in respect of the
total loss of earnings suffered
by the plaintiff in relation to the
motor vehicle accident in
casu.
[27.3]
The amount in order number 27.2 above shall, within 180 days from
date of this order, be paid by direct transfer into the
trust account
of
Maloka Sebola Attorneys
the details of which are as follows:
BANK: STANDARD BANK
ACCOUNT NUMBER: 0[...]
REFERENCE:
SEBOLA/MVA/2012/28
[27.4] 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.
[27.5] 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.
[27.6] 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.
[27.7] 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 failing which interest at the prescribed
rate shall commence to
run until date of payment.
27.8 The issue of general
damages is postponed sine die.
MALOSE.S. MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
22 May 2024
Judgement
delivered on
:
03 September 2024
For
the Plaintiff
:
Adv. T M Malatji
:
Instructed by Maloka Sebola Attorneys
:
Tel: - 015 307 7496
:
Email:
info@malokasebolainc.co.za
For
the Defendant
:
No appearance