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[2024] ZALMPPHC 119
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T.P.M obo M.M v Road Accident Fund (3988/2022) [2024] ZALMPPHC 119 (30 September 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 3988/2022
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO
OTHER JUDGES:
YES
/NO
(3)
REVISED.
DATE:
30-09-2024
SIGNATURE:
In
the matter between:
M[...]
T[...] P[...] obo
PLAINTIFF
M[...]
M[...]
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGEMENT
MASHAMBA
AJ
INTRODUCTION
1.
The plaintiff acts on
behalf of her minor child namely M[...] M[...], a male minor
(hereinafter referred as a minor) born on the
27
th
February 2009. The
minor was seven (7) years old when the accident occurred and
currently fifteen (15) years of age, at Grade 8.
The plaintiff and
her son reside at 2[...] B[...] Village, Malamulele, Limpopo
Province.
2.
The defendant is the
Road Accident Fund, a legal persona constituted as such and endowed
with legal personality in terms of the
provisions of
section 2
of the
Road Accident Fund Act 56 of 1996
, as amended, with its principal
place of business at 38 Ida Street, Menlo Park, Pretoria, Gauteng
Provinces.
3.
On the 16
th
day of September
2016, at Malamulele, along Mphakati public road, the minor was a
pedestrian walking outside the road when knocked
by a motor vehicle,
Toyota Fortuner, with registration number H[...], Grey in colour,
driven by Richard Mzamani Mashaba.
4.
The summons against
the defendant was issued on the 09
th
December 2020, and
served by sheriff on the 26 April 2022, at the defendant principal
place of business. The defendant did not enter
his appearance to
defend as required.
5.
The merits were
finalised on the 07
th
November 2023, by an
order granted by Maphelela AJ, and the quantum was postponed
sine
die
.
6.
The plaintiff has
sued the Defendant for a total amount of R 12 000 000,00
(Twelve Million) which amount was calculated
as follows;
4.1
Past Medical expenses
R 100 000.00
4.2
Future Medical expenses
R 900 000.00
4.3
Future Loss of Earning
R 6 500 000,00
4.4
General Damages
R 4 500 000,00
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 decide on the two heads of damages,
the first for the minor’s Past and Future
Loss of Earnings and
the second, for general damages.
9.
The matter was set
down for trial on the 10
th
September 2024. The
defendant did not defend the matter. So, this court allowed the
plaintiff’s counsel to proceed with his
submissions based on
the experts’ reports filed before court.
PLAINTIFF’S
EVIDENCE
10.
The Plaintiff relied
on the following medical experts reports to prove his case;
11.1Dr
Kumberai (Orthopaedic Surgeon)
11.2
Annette Swanepoel (Clinical Psychologist)
11.3
V.P Cloete (Educational Psychologist)
11.4
N.J Mabote (Occupational Therapist)
11.5
Siphesihle Mkabile (Industrial Psychologist)
11.7
Robert J Koch (Actuaries)
11.
In
Prince
v Road Accident Fund
[1]
the
Court held at paragraphs 55, 56 and 59 in the evaluation of the
probabilities in respect of expert evidence.
“
[55]
Sufficient proof is established when an inference can be drawn about
the fact in issue, providing that the inference is consistent
with
all the proven facts. In civil matters, it suffices if the inference
is the most probable inference.
[56]
Further, once prima facie proof or evidence has been provided, that
is proof calling for an answer. This becomes conclusive
proof on the
point in issue usually if no evidence is produced to rebut it. The
fact of the matter is, however, that the Court
must at the end of the
case review all the evidence and evaluate this according to the
applicable primary criterion.
[59]
It must be accepted, of course, that where, for example, a Defendant
fails to produce evidence, this does not mean necessarily
that the
opponent’s version in the case, falls to be accepted. The
acceptance of Plaintiff’s case depends on the probative
strength of Plaintiff’s case, being whether it is sufficient to
cast, an evidential burden on the Defendant to present evidence.”
12.
After the occurrence
of the accident the minor was evacuated to Malamulele Hospital for
medical treatment. The minor had multiple
abrasions on the head,
bilateral femur fracture and loss of consciousness and regained it at
the hospital.
13.
The minor received
the following medical treatment; clinical and radiological
examination, pain management, neurological observation.
The minor was
later transferred to Tshilidzini Hospital where he received the
following definitive treatment; Titanium Elastic
Nail System (TENS)
to the right and left femur, anti-septic management, physiotherapy,
Crutches and rehabilitation.
14.
The minor spent three
(3) weeks in Malamulele Hospital and two (2) weeks at Tshilidzini
Hospital before discharged as an outpatient.
15.
The minor was
examined by Dr P.T Kumberai, an Orthopaedic Surgeon (Ortho) on the 01
February 2022. The Ortho noted the major minor’s
complaints
which among others include; painful right and left thigh/femur- this
is exacerbated by prolonged standing, walking and
in cold weather,
Sequelae of Head Injury; poor academic performance, recurrent
headaches and poor concentration span- opinion deferred
to the
educational psychologist and neurosurgeon.
16.
The ortho noted 2
scars each 2 cm on the medial and lateral distal femur and the same
in the right thigh. The ortho calculated WPI
= 6%, and opined that
the minor qualifies the minor with narrative test, the injuries will
have serious long-term impairment /loss
of body function.
17.
The minor was
examined by N.J Mabote. An Occupational Therapist (OT), on the 15
th
February 2023. The OT
noted that the minor currently complains of bilateral knee pain with
squatting and prolonged standing. The
OT further noted that inclement
weather triggers pain over the fractured site. The OT opined that the
minor performance TVPS was
average in 6 subtests and impaired in
visual memory subtest. The OT further opined that his performance was
in 6 subtests and impaired
in visual memory. The OT reported that the
minor repeated two grades after accident. The OT reported that the
minor has emotional
liability with aggressive tendencies which are
displayed at home and at school even towards the teachers. The OT
opined that if
the minor current academic performance and emotional
trajectory is maintained, he is unlikely to pass grade 12. The minor
will
benefic from remedial education intervention to help him to deal
with perceptual problem.
18.
The minor was
examined by Annette Swanepoel, a clinical psychologist (clinical
psyc) on the 08 April 2022. The clinical psych opined
that the minor
displays a very low self-esteem or maladaptive behaviours and that
his behaviour do affect his functioning in the
society environment or
very negatively impact on his normal living. The clinical psych
opined that the minor needs to go to a special
school facility for
learning. The minor needs more medication care for the blood in his
urine in the summer times. The minor also
needs more psychology
counselling to help him to cope with his difficult situations for his
future.
19.
The minor was
examined by V.P Cloete, an educational psychologist on the 14
th
April 2022. Cloete
opined that pre-accident, the minor was most probably a child of
atleast average intelligence, he was probably
had the ability to pass
grade 12 and probably the ability to pursue tertiary studies. The
Educational Psychologist further opined
that after considering that
the minor experiences learning difficulties and has failed grade 4
and 6 post-accident, this is an
indicator that he might probably find
it difficult to complete grade 12 in a mainstream school. The minor
should unless benefit
from recommended sessions, he might have to be
referred to a remedial school or school for learners with special
educational needs
(LSEN) school.
LOSS
OF EARNINGS
20.
The minor was
examined by the Industrial Psychologist (IP), S Nkabile on the
28 July 2023. The IP made projection of pre-accident
earning and
employment scenario; The IP noted the opinion of the Educational
Psychologist that the minor was most probably a child
of at least
average intelligence and further that the minor was probably had the
ability to pass grade 12 and probably the ability
to pursue tertiary
studies. In the light of the available information as well as the
Educational Psychologist’s opinion,
the IP opined that the
minor’s pre-accident learning and earning potentials are likely
to have been as follows;
21.
Scenario 1: Degree
(NQF Level 7)
,
after completing his matric, probably in 2026, the minor could have
enrolled for a bachelor’s degree of his choice. Upon
completion
of his degree probably in 2029/30. It could have taken him about 12
months to do a learnership or internship in which
he could have
earned on par with suggested learnership allowance of R 105 872
per annum as per Quantum yearbook 2023.
22.
Then after completing
his learnership, it could have taken him at least 0-06 months to
secure employment which is in line with his
qualification. In this
regard, he is likely to have started earning between the lower and
upper quartile of Paterson level B5/C1.
With experience, better
employment opportunities and promotional prospects, the minor is
likely to have progressed and reached
his ultimate earning level at
the upper quartile of Paterson D1 (total package) when he reached 45
years with applicable inflationary
increase thereafter. The minor
would have been able to work in the open labour market until the
normal retirement age of 65 years
depending on a variety of factors
such as his health status, personal circumstances and conditions of
employment.
23.
Post-accident
scenario 1, The reported challenge will preclude the minor from
competing fairly for employment. It is likely that
he will come
across an employer who will be willing to accommodate his reported
challenges in the open labour market. The minor
will in all
probability experience extended periods of unemployment.
24.
However, in the
unlikely event that he secures employment in his injured state, he is
likely to earn at the lower quartile of unskilled
workers with
periods of unemployment in between. Should he be fortunate enough to
sustain his employment, he will most likely reach
his ultimate
earning potential between the median and upper quartile of unskilled
workers when he reaches 45 years with applicable
inflationary
increases for as long as he manages to sustain employment. According
to Robert J Koch, Quantum yearbook 2023, unskilled
non-corporate
workers earn between R 26 000.00- R 47 000- R 104 000
per year. The IP concluded that in terms of
future potential that
application of high contingencies take place.
25.
The Plaintiff used
the services of Robert J Koch Consulting Actuaries and the
calculations were done based on the Industrial Psychologist
report.
The calculations are as follows;
RESULTS:
Uninjured
Injury
Net
Value
Future
income (unlikely)
R
13 921 876
R
1174302
R
12 747 574
Future
income(likely)
R
13 921 876
0
R
13 921 876
26.
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,
[2]
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
[3]
.
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".
27.
The plaintiff’s
Counsel submitted that considering the minor’s age,
qualification, injuries and the injuries sequelae,
35% contingency
deductions are reasonable. The court finds the contingency
deductions of 35 % being reasonable when considering
all factors,
among others, the injuries sequelae, and the minor child’s
school reports.
28.
The court took into
account all the medical expert reports, particularly, the Industrial
Psychologist who postulated the minor’s
future loss of earnings
and the above calculations by Robert J Koch Actuarial Consultants.
The court is satisfied with the medical
expert’s evidence. The
future loss of earning after the deduction of 35% contingency is
calculated as follows; R 12 747
574 – 35 % (R 4 461
650) =
R
8 285 923.00
GENERAL
DAMAGES
29.
In dealing with
general damages, I considered the court order granted on the 19
th
May 2023 by the
learned brother Judge Kganyago, and in brief the order compelled the
defendant to within 10 (ten) days from the
date of service of the
Court Order to indicate that the plaintiff injuries had been
correctly assessed as serious as per the RAF
4 form by Dr P.T
Kumberai. The Court Order required the defendant to exercise his
rights in terms of regulation 3(3)(d) to reject
or direct the
plaintiff for assessment by designated medical practitioner of his
choice. The court order further indicates that
if the defendant fails
within 10 (ten) days from the date the Defendant received the court
order the plaintiff will be deemed to
have qualified for general
damages. The court order was served to the defendant Menlyn office on
the 08 September 2023. The defendant
did not comply with the court
order, instead, defendant is mute. The court order was not varied nor
rescinded in terms of Rule
42, of the Uniform Rules of the High
Courts. This Court shall proceed to adjudicate on the issues of
general damages.
30.
The Plaintiff
submitted that the amount of R 900 000.00 (nine hundred thousand
Rands) is fair and reasonable to compensate
the plaintiff for general
damages. The Plaintiff referred the court in the case of
Mokwena
v Road Accident Fund
(75931/2017) [2020]
zagpphc 320 (03 July 2020), a 37 years old man was involved as a
pedestrian in a motor vehicle accident and
suffered a compound
fracture of the right humerus, a left closed fibula fracture, a head
injury and soft tissue neck injury. The
Court awarded R 850 000.00
in general damages (2020)
31.
In another case the
Woolley v
Road Accident Fund (3123/19P) [2022] ZAKNPPHC (05 Aungust 2022) an
adult female person suffered open tibia and fibula
fracture on the
right leg, fracture of left tibia among other injuries. The court
awarded R 850 000.00 in general damages
(2022)
32.
The
plaintiff’s counsel referred the to several case laws in
relation to general damages. It is so that one cannot find a
case
that is exactly the same as that of the plaintiff, however there are
injuries and sequelae that informs the court to determine
a
reasonable amount to compensate the plaintiff for general damages. I
have considered the injuries and I am inclined to agree
with the
plaintiff’s counsel that the plaintiff must be compensated for
general damages. I am of the view that the amount
that is fair and
appropriate in this matter is the sum of
R 850 000.00
for
general damages.
COSTS
The
court shall not deviate to the general rule that the issue of cost
follows the successful party, in this case the plaintiff
succeeded in
her claim and should be awarded cost in party and party scale.
33.
In the circumstances,
the following is the order of the Court;
1.
The
defendant shall pay to the plaintiff the amount of
R
8 285 923.00
(eight
million, Two Hundred and Eighty-Five Thousand, Nine Hundred and
Twenty-Three Rand) in relation to the future loss of earnings.
2.
The
defendant shall pay the amount of
R
850 000.00
(Eight
hundred and Fifty Thousand Rand) for general damages.
3.
The
defendant shall furnish the plaintiff with an undertaking in terms of
section 17(4) of Act 560f 1996 for payment of 100% 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
September 2016.
4.
The
Amount in paragraph 1 above shall be paid into following Bank
Accounts;
NAME
OF BANK: FNB
ACCOUNT
HOLDER: ISHMAEL PHALA ATTORNEYS
ACCOUNT
NO: 6
[...]
BRANCH
CODE: 260146
ACCOUNT
TYPE: CHEQUE ACCOUNT
5.
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
.
6.
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.
7.
The
costs consequently in the preparation of and obtaining the medico
legal and actuary reports that were served on or provided
to the
Defendant.
8.
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.
9.
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.
10.
The reasonable taxable costs of traveling, subsistence, accommodation
costs
of the Plaintiff for attending court.
11.
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.
12.
The trust account shall be opened on behalf of the minor child.
MASHAMBA
AJ
JUDGE
OF THE HIGH COURT,
POLOKWANE;
LIMPOPO DIVISION
APPEARANCES
FOR
THE PLAINTIFF : PROF/ADV JLH LETSOALO
INSTRUCTED
BY :
ISHMAEL PHALA ATTORNEYS
EMAIL
:
phalaattorneys@gmail.com
FOR
THE DEFENDANT : NO APPEARANCE
INSTRUCTED
BY :
DATE
OF HEARING : 10 SEPTEMBER 2024
DATE
OF JUDGEMENT : 30 SEPTEMBER 2024
[1]
(CA
143/2017)
[2018]
ZAECGHC 20
(20 March 2018)
[2]
1948
[1] SA 1988 at 1135
[3]
1980
(3) SA 105
(A)
at 114 - 5