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2024
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[2024] ZALMPPHC 106
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Mahloko v Road Accident Fund (11951/2022) [2024] ZALMPPHC 106 (10 September 2024)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:11951/2022
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
Signature:
Date: 2024/09/10
In the matter between:
SENTSHO DANIEL
MAHLOKO
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MONENE
AJ
[1]
The plaintiff instituted action proceedings against the defendant for
damages arising
from a motor vehicle accident which occurred on 20
March 2022 along the Dinotsi gravel road in this province. He was a
driver of
a motor vehicle which collided with another the latter
having fled the scene of the crime without trace.
[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). The
application to proceed
on the basis of available affidavits of the
witnesses and to not lead oral evidence was granted by this court.
[3]
It being so that, as regards general damages, the jurisdiction of
this court is as
per precedence not engaged owing to the defendant
having not made an election regarding the seriousness of the injuries
to the
plaintiff by the defendant, what stands to be determined, even
per the submissions of plaintiff’s counsel before this court
is
the liability and the plaintiff’s loss of earnings. General
damages are 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,
the accident report and the hospital records, all of which, remaining
unopposed,
prove before me that the runaway driver was solely
responsible for the motor vehicle collision.
4.2
Accordingly I do have no hesitation in finding that absent any other
evidence other than the plaintiff’s
say so in the section 19(f)
affidavit, the fund’s liability has successfully 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 Mphele Tladi’s
evidence is that the plaintiff sustained a left proximal femur
fracture and a back
injury. The sequelae thereof manifested, as per
this witness, in the plaintiff enduring acute pains daily and severe
reduced hip
movements. The doctor opined further that the plaintiff’s
injuries suggested that in the future he may suffer more cartilage
damages, post traumatic osteoarthritis of the hip leading to possible
complete hip replacement.
4.5
Ms. Brilliant Manyama, an occupational therapist, recognized the fact
that post the accident
the plaintiff was admitted at hospital for
four months and further the plaintiff, post the accident, had an
antalgic gait with
slow pace when walking, difficulty standing and
walking for long periods and went on to opine that post morbid the
plaintiff’s
manual work rate was below the average. Observing
that the plaintiff was an educator by profession this expert opined
that the
stated sequelae of the injuries sustained in the accident
may affect his work output negatively. She concluded thus that the
plaintiff
has been rendered an unequal competitor in the open labour
market.
4.6
Tshepho Kalanga, an industrial psychologist, in brief, observed that
the plaintiff was an
educator who remains employed as such to date,
having professionally qualified to do that work per a senior teaching
diploma. This
expert further observed that the plaintiff’s
gross salary per annum was R161 520.00 per annum. Given the
nature of his
line of work it was opined by this witness that the
plaintiff, at 57 years of age, had reached his career plateau and was
on the
home straight of maintaining his career towards retirement.
This expert further stated that but for the accident the plaintiff
would, most probably, have continued the same employment trajectory
until retirement 65 years. It was testified further that the
industrial psychologist is of the opinion that it is more probable
than not that his residual work capacity would see him losing
his
employment prior retirement because the plaintiff’s
employability has been compromised by the accident or motor vehicle
collision.
4.7
Munro 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
four
moths sick leave, not suffered any past loss. On the contrary,
the plaintiff had, considering the difference between his pre-morbid
and post morbid past loss experienced an increase of R6 100.00.
This expert, in sum, postulated a net future loss of earnings
at
R1 594 900.00 to which amount contingencies were factored
at 15 percent, resulting in a total loss of R1 355 665.565.
From that amount the actuary subtracted the plaintiff’s gain of
R6 100.00 under the past loss computations arriving,
in the
final analysis, at a loss of R1 349.565.00.
[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 is clearly lacking in
casu. I cannot
fault any of the experts in casu in any manner.
[7]
I would have granted judgement on the day the matter was argued per
standard court
order but had hiccup raised by a question which
incessantly occupied my mind to wit; whether the plaintiff, being
likely still,
capable of not retiring early, he would not be unfairly
advantaged by the postulated compensatory award. It remains a
probability
that the applicant can be accommodated by the employer, a
state department for that matter, for the balance of the remaining
years
to retirement resulting in the plaintiff retiring at the normal
retirement age of 65 and not necessarily be an early retiree as
opined by both the occupational therapist and the industrial
psychologist. 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. But then what if, as the
sequelae get worse with the age of the plaintiff, 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 and the actuary’s
computations inclusive of the contingency percentage of 15 percent
utilized.
[8]
Accordingly, I am persuaded to award the plaintiff loss of earnings
in accordance
with the 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 20 March 2022.
9.2
The defendant shall pay an amount R R1 349.565.00 (
ONE
MILLION, THREE HUNDRED AND FOURTY-NINE THOUSAND, FIVE HUNDRED AND
SIXTY-FIVE 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: K T
RACHUENE ATTORNEYS
BANK: FNB
ACCOUNT NUMBER: 6[...]
BRANCH CODE: 252145
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 their
being determined; 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
It is ordered that the defendant is liable for the costs of future
accommodation
of the plaintiff in hospitals or other health care
facilities as well as all attendant medical services needed by the
plaintiff
arising from injuries the plaintiff in a motor vehicle
accident of 20 March 2022.
9.7
The issue of general damages is postponed sine die.
MALOSE S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
30 May 2024
Judgment
delivered on
:
10 September 2024
For
the Plaintiff
:
Adv. S Mathabathe
:
Instructed by K T Rachoene Attorneys
:
Tel: - 012 880 4723//083 212 1018
:
Email: Unknown
For
the Defendant
:
No appearance