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[2024] ZALMPPHC 118
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Ntsemi v Road Accident Fund (7084/2017) [2024] ZALMPPHC 118 (30 September 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 7084/2017
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO THE
JUDGES:
YES
/NO
(3) REVISED
DATE: 30-09-2024
SIGNATURE:
In the matter between:
NTSEMI NHLAMULO
SETFREE
PLAINTIFF
And
ROAD ACCIDENT FUND
DEFENDANT
JUDGEMENT
INTRODUCTION
1.
The plaintiff is Ntsemi, Hlamulo
(hereinafter referred as “the plaintiff”), an adult male
person, born on the 30
th
January 1995. The plaintiff was 21 (twenty-one) years old when the
accident occurred and currently twenty-nine (29) years of age.
The
plaintiff sues herein in his capacity as a claimant for the damages
suffered.
2.
The defendant is the Road Accident Fund
(hereinafter referred as “the defendant”), a juristic
person established in
terms of
Section 2
of the
Road Accident Fund
Act 56 of 1996
with legal capacity to institute action and defend
action brought against it, having its principal place of business at
38 Ida
Street, Menlo Park, Pretoria.
3.
On the 16
th
July 2016, at approximately 19:30, at Bevhula Village, Bevhula gravel
road, Malamulele, Limpopo province, an accident occurred
when a motor
vehicle with registration numbers and letters D[...], lost control,
collided with a rock and rolled several times.
The plaintiff alleged
that the accident was caused by another unknow motor vehicle which
was driving in an excessive speed with
a bright light which disturbed
his vision.
4.
The court was of the
view that the plaintiff in the circumstances, he contributed to the
accident. The court noted that the speed
limit in the said gravel
road is 60km per hour and the extent of motor vehicle damages as
explained by the plaintiff, indicates
that the plaintiff’s
motor vehicle was driving in an excessive speed. The police statement
indicate that the plaintiff reported
that the car rolled several
times. The plaintiff’s motor vehicle had no contact with the
unknown motor vehicle. The court
is of the view that the plaintiff
was also negligent, he contributed to the cause of the accident. The
court apportioned 10% against
the plaintiff.
5.
The matter was before court on the 20
th
August 2024, and the court has made an order that the plaintiff
should be compensated 90 % of his proven damages. The court has
done
so after the viva voce evidence by the plaintiff and considered that
the plaintiff was also driving in an excessive speed
and contributed
to the said accident. The court reserved judgment on issues of the
quantum.
6.
The Plaintiff has sued the Defendant for a
total amount of R 9 000 000,00 (Nine Million) which amount
was calculated as
follows;
4.1 Past Medical expenses
abandoned
4.2 Future Medical
expenses
Undertaking
4.3 Future Loss of
Earning
R 9 000 000.00
4.4 General Damages
refer to HPCSA
7.
The plaintiff abandoned the claim for past
medical expenses since there were no proves of invoices and the
plaintiff submitted that
the Future Medical Expenses should be
substituted by a
section 17
(4)(a) -(b) of the Road Accident Fund 56
of 1996, as amended, (“the Act”) undertaking certificate.
8.
The plaintiff submitted that the court
should adjudicate the plaintiff’s past and future loss of
earnings and that the issues
of general damages to be referred to
HPCSA for determination.
9.
The matter was undefended, therefore, the
court has given the plaintiff’s counsel to proceed with his
submissions based on
the experts’ reports filed before this
court.
PLAINTIFF’S
EVIDENCE
10.
The Plaintiff relied on the following
medical experts reports to prove his case;
9.1 Dr T.J Enslin
(Orthopaedic Surgeon)
9.2 Dr T.P Moja
(Neurosurgeon)
9.3 Dr S.S Selahle
(Plastic Surgeon)
9.4 Dr P.D Albertyn (ENT
Specialist)
9.5 Dr C. Avenant
(Audiologist)
9.6 Dr Mphuthi SF
(Clinical psychologist)
9.7 Mrs F. Masipa
(Educational Psychologist)
9.8 Mrs S.D Mogola
(Occupational Therapist)
9.9 Mrs R.L Mayayise
(Industrial Psychologist)
9.10 One Pangea
(Actuaries)
11.
The plaintiff was
examined by Dr Enslin, an orthopaedic surgeon, on the 14 September
2017. According to Dr Enslin, the plaintiff
was involved in a motor
vehicle accident on the 16 July 2016. The plaintiff was taken by an
ambulance to Malamulele Hospital where
he was evaluated and
stabilised, his wounds were cleaned. The plaintiff was discharged the
following day. The plaintiff was readmitted
to hospital four days
later for 1 (one) week due to sepsis over the scalp and left ear. The
plaintiff attended physiotherapy for
his right shoulder. The
plaintiff had difficulty lifting his right arm.
12.
The clinical
examination on the 14 September 2017 confirmed; multiple scars over
both sides of the face and a degloving injury to
the left parietal
region of the scalp. The plaintiff had a deformed left ear pinna and
tenderness over the right glenohumeral joint.
The Scratch and
Impingement tests are positive. The speed test is negative. Movements
in the right shoulder are as follows: flexion
is painful,
0-to-130-degree, extension is uncomfortable,
0-to-40-degree,
external rotation is not painful
,
0-to-50-
degree,
internal rotation is not painful,
0
to 80
and, abduction
is painful
, 0-to-90 degrees
.
The plaintiff occasionally has nightmares. The plaintiff is depressed
because of his injuries. The plaintiff has no concentration
or memory
problems.
13.
Radiological examination made on the 14
th
September 2017 shows right shoulder: subacromial / subdeltoid
bursitis. Full thickness tear of the supraspinatus tendon. A
supraspinatus
tendon tear was noted anteriorly at 10.5mm in length
and 9.4 mm in diameter. The plaintiff was diagnosed of head injury, a
degloving
injury of the right side of his face and left ear and the
soft tissue injury of the right shoulder. The calculated WPI is 19%
and
qualified the plaintiff with narrative test.
14.
The plaintiff was examined by Dr Moja, a
neurosurgeon, on the 27
th
June 2019. According to Dr Moja, there is no record of Glasgow Coma
Scale at the accident scene and on arrival at the hospital.
Dr Moja
noted that the plaintiff complains of the headaches, decrease hearing
in his right ear, memory loss and right shoulder
pain. Dr Moja
concluded that the plaintiff sustained a mild concussive brain injury
and soft tissue injury. The plaintiff also
sustained an ear injury
and orthopaedic injuries. The plaintiff has no residual focal
neurological deficits. The calculated WPI
is 16% and the plaintiff
qualifies for general damages.
15.
The plaintiff was examined by Dr Selahle, a
Plastic surgeon, on the 24
th
July 2024. According to Dr Selahle, the plaintiff has the following
scars; 4cm scar on the left temporal scalp, 2 scars measuring
2c each
on the helical rim of the left ear, 3 cm scar on the right eyebrow,
3x2 cm scar on the right zygomatic area and 2cm scar
on the right
pre-auricular area. The plaintiff also has scars at the right upper
limb, 12x4 cm abrasion scar on the lateral aspect
of the arm. Dr Moja
opined that these scars have no features of scar hypertrophy, but
they are cosmetically and disfiguring. The
calculated WPI is equal to
9%.
16.
The plaintiff was examined by Dr Albertyn,
an ENT specialist, on the 20
th
February 2020. According to Dr Albertyn, the plaintiff complains of a
periodic pulsating tinnitus of the right ear. The diagnosis
of
treating the tinnitus is not applicable and this will not have an
effect to plaintiff’s life expectancy or on his insurability.
WPI is calculated to 1.4 %
17.
The plaintiff was examined by Avenant
Audiologist, on the 20
th
February 2020. According to the report the plaintiff did not sustain
any permanent injury to his hearing abilities during the accident.
18.
The plaintiff was examined by Ms S.D Moja,
an Occupational Therapist (OT), on the 02 July 2024. The OT noted
that during the date
of the accident, the plaintiff was a scholar
doing grade 12. The plaintiff resumed back to school after two weeks
following the
accident. Based on the test results, her workability
can be viewed as follows:
1.
According to the Dictionary of Occupation
Titles, the plaintiff’s job as an artisan Assistant falls
within medium strength
work with the core job demands being the use
of arms, forward reaching, standing, walking, lifting and carrying
objects of 15kg
frequently. The PWPE test findings indicate that he
can cope with Mid-range medium strength work frequently (i.e., 2/3 to
full
day), since he still experiences right shoulder pain when doing
elevated work and forward reaching, plus dizziness and constant
headache with prolonged walking. Thus, there is no full job march.
2.
The OT, concluded that from a physical
point of view, the plaintiff has not retained a full physical
capacity to cope with his pre-
and post-accident job demands and is
also disadvantaged in performing all the future jobs that are
physically demanding in nature
that demand handling heavy weights,
prolonged standing and use of arms such as his current job. This was
supported by the fact
that he was struggling to cope with his job
demands and the company managed to reasonably accommodate him by
reducing some of work
demands such as handling heavy weights.
3.
The OT, concludes that from a
psycho-emotional perspective point of view, the plaintiff did not
present with any major deficits
that will affect his work output.
However, his unsightly scars might cause some judgmental comments by
prospective employees and
new colleagues should he go to a new work
environment, as scars are usually associated with criminals.
4.
The OT, concludes that from neurocognitive
point of view, during evaluation, the plaintiff presented with poor
abilities to follow
verbal instructions and he was forgetful.
19.
The plaintiff was examined by S.F Mphuthi,
a clinical psychologist (clinical), on the 01 July 2024. The clinical
concludes that
the plaintiff’s overall neurological
performance, as indicated by Neurocognition Index (NCI), is very low,
denoting likely
presence of neurocognitive impairment and deficit.
The plaintiff obtained average score for visual memory; low average
for composite
memory, complex attention, cognitive flexibility, low
average for verbal memory, executive function; the score for the rest
of
the domains were below average (very low). Applying the principle
of broadly average range. The plaintiff well below average (very
low)
overall performance on the neurocognitive test battery is therefore
significantly below his pre-accident capability.
20.
Quantitative EEG (qEEG) result indicates
that the applicant’s absolute power score is characterised by
elevated scores for
delta, theta, and beta. Elevated delta is
associated with poor cognition (difficulty learning new information).
Elevated theta
is the hallmark of inattention. Elevated beta is
associated with tension and anxiety, rendering him vulnerable to
slower than normal
information processing. Brain connectivity
measures show indicators of inefficient information processing (hyper
coherence and
increased phase), poor integration of information (hypo
coherence), as well as inhibitory mechanism problems (decreased phase
lag),
in turn rendering him vulnerable to diminished social acuity
problems, such as irritability and aggression towards others. The
clinical opined that the accident acquired neurocognitive impairment
is of mild to moderate degree.
21.
The clinical opined that the applicant has
capacity to manage his own affairs with regards to activities of
daily living but will
remain psychologically vulnerable before and
during the period that he undergoes the recommended psychotherapy.
Total calculated
WPI= 21%
22.
The plaintiff was examined by M. Frieda
Masipa, an Educational Psychologist (educational) on the 16 July
2019, the report is dated
the 04
th
August 2024. The educational noted that post accident the plaintiff
lost about a month of school time. The plaintiff sat for grade
12
examination for the first time in 2016, The plaintiff wrote 4
subjects, which he passed He sat for remaining 3 subjects in 2017
and
passed 2. The plaintiff then passed grade 12 with higher certificate
admission with the combined results of 2016 and 2017.
The educational
opined that the plaintiff could have experienced learning barriers
due to the injuries from the accident.
23.
Post grade 12, in 2018, the plaintiff
enrolled for N4 Public Management in Tshwane City College. Post
accident he attained N4 certificate.
This makes the plaintiff the
only person in his house hold with highest educational attainment,
N4. The plaintiff reported that
he found it difficult to study after
the accident. The plaintiff said that he was bothered by the pain on
the right shoulder, headaches,
poor attention and his slowness in
grasping the content, hence he left school and begun with job
hunting. The educational opined
that pre-accident the plaintiff would
have attained grade 12 with a Diploma admission. The plaintiff would
have been eligible for
a NQF level 6 qualification.
24.
Post accident as already been established
that the plaintiff passed grade 12 with a higher certificate
admission and has N4 Certificate
in Public Management, irrespective
pf his pre-accident vulnerabilities that negatively impacted his
learning. The educational noted
that the results qualify him to study
towards NQF level 5 qualification, his post -accident challenges are
likely to further disadvantage
him scholastically. The educational
opined that it is unlikely for the plaintiff to obtain further
qualification post-accident.
LOSS OF PAST AND FUTURE
EARNING
25.
The plaintiff was re-examined by Ms Lowane
Mayayise, an Industrial Psychologist (IP), on the 07
th
August 202.The IP, considered the opinion of the Educational
Psychologist who opined that pre-accident the plaintiff would have
attained grade 12 with a Diploma Admission. The plaintiff would have
been eligible to enroll for a NQF level 6 qualification. The
IP
opined that this would have been over a period of 3 years. With such
a level of education, due to the high unemployment rate,
the
plaintiff would have most likely initially suffered a period of
unemployment before he would have been able to secure employment.
It
is accepted that a period of about 1 to 2 years should be a realistic
forecast in this regard. With a post-matric diploma qualification,
he
would have thereafter most probably secured employment within the
formal sector of the labour market as a semi-skilled worker
on a
grade B4/5 median range basic salary earning and thereafter
progressed through to a ceiling on grade C4/5 upper quartile total
cost to the employer level as his ceiling by the age 45. Thereafter
inflationary growth would have been applicable. The retirement
age
would have been at the approximately 60 and 65.
26.
Post-accident, the IP noted that his grade
13 result qualifies him to study towards NQF Level 5 qualification,
his post -accident
challenges are likely to further disadvantage him
scholastically. The IP opined that it is reasonable to accept that
the injuries
sustained and presenting symptoms have impacted
negatively to his scholastic prospects as well as his employability
as well as
that he will remain unequal competitors within the open
labour market. The plaintiff experiences failures and repeats as he
progresses
through the higher learning institutions.
27.
The failures represented a loss of earning
suffered by the way of delayed in career entry. Employment feedback
obtained from Mr
Roman Khoza who is the Supervisor and Artisan at
steel Trade is that the plaintiff is not promotable because he will
not be able
to use a grinder to cut steel. The IP opined that it is
reasonable to indicate that the plaintiff is at best case scenario
likely
to remain in his current position as only an Artisan’s
assistant or similar wherein wages similar to what he currently earns
(R5308.88 basic salary per month) would be applicable with at best
annual inflationary increases representing growth. It is herein
further noted that such employment would need always be of a
sympathetic nature wherein reasonable accommodative allowances are
allowed as is currently the case.
28.
The Plaintiff used the services of ONE
PANGAEA expertise solution and the calculations were done based on
the Industrial Psychologist
report. The calculations are as follows;
Loss
of earnings
Pre-accident
R’s
Past-accident
R’s
Loss
R’s
Past
872,249
100,343
Past
contingencies
10%
(87,224)
5%
(5,017)
Net
Past Income
785
025
95,326
689,699
Future
Income
12,518,369
2,411,213
Future
contingencies
35%
(4 381 429)
45%
(1,085,045)
Net
Future Income
8,136,940
1,326,167
6,810,773
TOTAL
LOSS
7,500,472
29.
The plaintiff submits that the
contingencies to be applied is 5% pre- and post-accident pass income
and 15% pre-accident future
loss and 25% post-accident future loss.
This court exercises its discretion on the issues of contingencies.
The court considered
the plaintiff’s pre-accident reports which
indicates that the plaintiff had pre-existing challenges which caused
the plaintiff
to repeat several grades before this motor vehicle
accident. The court took note of the accident which took place in
2013, where
the plaintiff was hit by astray stone and lost 8 teeth.
This injury might have a great effect to his performance at school
and
might have contributed to his neurological deficits. The
educational psychologist finalised her report without the
pre-accident
school reports of the plaintiff. The Court requested the
plaintiff to file the pre-accident school report before the
judgement.
The plaintiff forwarded the plaintiff’s school
report and the court noted that the plaintiff had a pre-existing
school performance
challenge. The court altered contingencies applied
in the actuarial calculation and replaced with the contingencies
deductions
as appear in the actuarial calculation, in
supra
,
paragraph 28.
30.
The
actuarial calculations are useful in that it provides the value of
the loss on some logical basis. In Southern Insurance Association
Ltd
v Bailey NO,
[1]
the court
held:
"Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is "tied down by inexorable
actuarial
calculations". He has "a large discretion to award what he
considers right" (per HOLMES JA in Legal
Assurance Co Ltd v Boles
1963
(1) SA 608
(A}
at 614F). One of the elements in exercising that discretion is the
making of a discount for "contingencies"
or the
"vicissitudes of life". These include such matters as the
possibility that the plaintiff may, in the result, have
less than a
"normal" expectation of life; and that he may experience
periods of unemployment by reason of incapacity
due to illness or
accident or to labour unrest or general economic conditions. The
amount of any discount may vary, depending upon
the circumstances of
the case. See Van der Plaats v South African Mutual Fire and
General Insurance Co Ltd
[2]
.
The rate of the discount cannot of course, be assessed on any logical
basis: the assessment must be largely arbitrary and must
depend upon
the trial Judge's impression of the case".
31.
The court finds that the total amount to
compensate the plaintiff for his past and future loss of earnings is
in the amount of R
7 500 472.00. The court deducts 10% merits
apportionment as indicated in paragraph 3
supra.
The total amount to compensate the
plaintiff after deduction of 10% should be
R
6 750 424.00
COSTS
32.
This court should not deviate to the
general rule that the cost follows the successful party and as such
the court award party and
party cost to the plaintiff against the
defendant.
33.
In the circumstances, the
following is the order of the Court;
1.
The
Defendant shall pay to the Plaintiff the amount of
R
6 750 424.00
(Six
Million, Seven hundred and Fifty thousand, Four Hundred and
Twenty-four Rand) in relation to the Past future loss of earnings.
2.
The
defendant shall furnish the plaintiff with an undertaking in terms of
section 17(4)
of Act 560f 1996 for payment of 90% for the future
accommodation of the plaintiff in a hospital or nursing home, or
treatment of
or rendering of a service or supply of goods to her,
arising from the injuries sustained by her in the motor vehicle
collision
on 16
th
July 2016.
3.
The
Amount in paragraph 1 above shall be paid into the trust account of
the plaintiff’s attorneys of record,
Molefe
Machaka Attorneys Incorporated
.
4.
The
Defendant shall be liable to pay interest on the aforesaid amounts
tempore
morae
at
the rate of 7% per annum from 180 days after the date of this order
to date of the payment
.
5.
The
defendant shall pay the Plaintiff ‘s taxed or agreed party and
party costs until the date of this order including costs
of a counsel
scale B.
6.
The
costs consequently in the preparation of and obtaining the medico
legal and actuary reports that were served on or provided
to the
Defendant.
7.
The reasonable taxable preparation,
qualifying and reservation fees, if any of the Plaintiff’s
experts for trial of whom notice
was given to the Defendant.
8.
The reasonable taxable costs of
necessary consultations with the said experts and the reasonable
taxable traveling, subsistence
and accommodation costs of the
Plaintiff for attending the medico legal examination, subject to the
discretion of the taxing master.
9.
The reasonable taxable costs of traveling,
subsistence, accommodation costs of the Plaintiff for attending
court.
10.
The Defendant shall be liable to pay interest
on the amount of the Plaintiff’s costs of suit, as taxed or
agreed, at 7 % per
annum from 14 (fourteen days) of the allocatur of
the taxing master or the date of the agreement, whichever applies, to
date of
payment.
11.
The issues of general damages to be referred to
HPCSA.
MASHAMBA AJ
JUDGE OF THE HIGH
COURT,
POLOKWANE; LIMPOPO
DIVISION
APPEARANCES
FOR THE PLAINTIFF
: ADV M.C.S BALOYI
INSTRUCTED
BY :
MOLEFE MACHAKA ATTORNEYS INCORPORATED
EMAIL
:
mpmolefeattorneys@gmail.com
FOR THE DEFENDANT : NO
APPEARANCE
INSTRUCTED
BY :
DATE OF HEARING
: 20 AUGUST 2024
DATE
OF JUDGEMENT : 30 SEPTEMBER 2024
[1]
1948
[1] SA 1988 at 1135
[2]
1980
(3) SA 105
(A)
at 114 - 5