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2024
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[2024] ZALMPPHC 102
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Sehlabela v Road Accident Fund (912/2023) [2024] ZALMPPHC 102 (4 September 2024)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:912/2023
In the matter between:
SEHLABELA MMASA
MARIA
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MONENE
AJ
[1] The plaintiff, a
61-year-old educator, instituted action proceedings against the
defendant for damages arising from a motor
vehicle accident which
occurred on 4 September 2022 along the R36 road in Letaba Cross in
this province. She was a passenger in
a motor vehicle which collided
with another at a four-way stop intersection.
[2] The defendant did not
defend this action at all leading to the plaintiff approaching this
court on default and seeking to be
heard per cover of affidavit in
terms of uniform rule 38(2).
[3] It being so that the
jurisdiction of this court is unfortunately as per precedence
hampered by the defendant, an opposing 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
liability and the plaintiff’s loss of earnings with general
damages
to be postponed sine die.
[4] Under cover of
affidavit the plaintiff adduced the following uncontested evidence in
brief:
[4.1] Regarding merits or
liability counsel for the plaintiff pointed me in the direction of
the plaintiff’s section 19(f)(i)
affidavit which proved that
the plaintiff was a passenger in one of the motor vehicles involved
in the collision. To this court
it matters not, for purposes of
proving liability in a passenger claim, whether the negligent driver
was the one ferrying the plaintiff
or the other. Either’s
negligence is sufficient to prove the defendant’s liability for
the damages the passenger incurred.
[4.2]
Accordingly I do not struggle to find that the proverbial one percent
negligence highlighted in such matters as
Groenewald
v Road Accident Fund(74920/2014)[2017] ZAGPPHC 879(5 October 2017)
per Mavundla J, has, absent any other evidence
other than the plaintiff’s say so in the section 19(f)
affidavit, been proven.
[4.3] Thus the defendant
is, in my view, 100 percent liable for the plaintiff’s proven
damages.
[4.4] Regarding the
injuries suffered by the plaintiff resulting from motor vehicle
collision an Orthopaedic surgeon, Dr W F Wayers’
evidence is
that she suffered from a right shoulder clavicle injury and soft
tissue injuries to both her lower limbs. It was further
opined by
this expert witness that the plaintiff now suffered, arising from the
accident, from midfoot degeneration to both her
feet exacerbated by
her advanced age.
[4.5] Dr I Diphofa, an
occupational therapist, testified that as sequelae of the motor
vehicle accident induced injuries the plaintiff
walks with a wide
base gait, has restricted elevation of the right arm, limited range
of motion and is unable to work for a long
period as she cannot stand
for long. It was furthermore the opinion of this expert that the
accident has seen the plaintiff struggle
to perform core tasks
attendant to being a teacher such as standing in front of learners
for long and writing on the chalkboard.
This witness opined that the
plaintiff would be pushed by the sequelae to retire this year,2024,
which is four years earlier than
her retirement age.
[4.6] M Mokhethi, an
industrial psychologist, in brief, agreed with the occupational
therapist’s opinion that the plaintiff
would retire early
because of the accident. This early retirement, it was opined by this
expert, would see her suffer a three-year
loss of earnings.
[4.7] I B Karidza of
Tsebo Actuaries determined, informed by the industrial psychologist’s
report that the plaintiff had,
because she has continued to work as
an educator post the accident and had been remunerated during her
sick leave, not suffered
any past loss. He postulated a net future
loss of earnings at R1 163 354.00 having factored
contingencies at a spread
of 5 to 10 percent to arrive at that
amount.
[5]
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...”
[6] I do not have the
benefit of soothsayers and oracles as I make a prediction of a future
loss in the present day but at least
I have the benefit of experts’
opinions to assist me in that speculation and make it one guided by
expertise. To deviate
therefrom I need something better or a
counterview, which evidently, is lacking in casu. I cannot fault any
of the experts in casu
in any manner.
[7] Where this court has
a hiccup over and above the normal “what ifs” which feed
into educated soothsaying is the question
regarding what if she does
not retire early. I engaged counsel for the plaintiff on this aspect
and he could not disagree that
the early retirement opined upon was
not cast in stone. It remains a possibility and a probability that
the applicant can be accommodated
for three more years and retire at
normal retirement age. If that was to obtain, she would, if the net
loss of earnings is not
interfered a bit more with contingencies,
have received far more than was due to her. The education department
has accommodated
her for close to two years to date since the
accident and maybe can still accommodate her some more three years.
But then what
if, as the sequelae get worse with age, she was to
indeed retire early? Won’t she then be said to have been
under-compensated?
I cannot see into the future and need guidance.
The only guidance I have and must work on unless there was a
countervailing expert
opinion from the defendant is that of the
occupational therapist and that of the industrial psychologist who,
unlike the court,
are not lay people in the science of speculation. I
am safe going with their well-reasoned conclusions.
[8] Accordingly, I am
persuaded to award the plaintiff loss of earnings in accordance with
the capped computation of the actuarial
scientist and in line with
submissions made by the plaintiff’s counsel in both his heads
of argument and in oral submissions
before me.
[9] In the result, I make
the following order:
[9.1] The defendant is
100 percent liable for the plaintiff’s proven damages arising
from injuries and sequelae emanating
from the motor vehicle collision
which occurred on 2 September 2022.
[9.2]
The defendant shall pay an amount R 1 163 354.00(
ONE
MILLION, ONE HUNDRED AND SIXTY-THREE THOUSAND, THREE HUNDRED AND
FIFTY-FOUR RANDS ONLY
) in respect of
loss of earnings.
[9.3] The said amount
shall be paid into the infra-mentioned trust account by direct
transfer within 180 days of this court order
being delivered:
ACCOUNT HOLDER: MALETE
MOSIBUDI MARY ATTORNEYS
BANK: FNB
ACCOUNT NUMBER: 6[...]
BRANCH CODE: 260226
BRANCH: PLATINUM PARK
POLOKWANE
[9.4] The defendant shall
pay the plaintiff’s taxed or agreed to party and party costs on
a high court scale which costs shall
include the costs attendant to
obtaining expert reports and the costs of counsel on scale B
[9.5] Should the
defendant fail to pay the amount in 9.2 above within the 180 days
and/or the agreed to or taxed costs within 30
days; 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.
[9.6] The issue of
general damages is postponed sine die.
MALOSE S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
03 June 2024
Judgment
delivered on
:
04 September 2024
For
the Plaintiff
:
Adv. D M Mphahlele
:
Instructed by Malete Mosibudi Mary Attorneys
:
Tel: - 015 101 1578
:
Email:
Maletemmattorneys@gmail.com
For
the Defendant
:
No appearance