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[2024] ZALMPPHC 122
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M.T.M v Road Accident Fund (313/2013) [2024] ZALMPPHC 122 (2 October 2024)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:313/2013
(1) REPORTABLE: YES /
NO
(2) OF INTEREST TO THE
JUDGES: YES / NO
(3) REVISED.
Date: 2024/10/02
Signature:
In the matter between:
M[...] T[...]
M[...]
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MONENE
AJ
[1] On 20 October 201o
the plaintiff, then a minor, was a pedestrian when he was involved in
a motor vehicle accident wherein, he
was knocked down by a motor
vehicle on a public road in Botlokwa.
[2] The plaintiff
suffered injuries consequently explained by the Orthopaedic surgeon
as head injury with concussion, back injury,
fracture of the sacrum,
abrasion and lacerations of the head and hair loss and abrasions of
the lip, right cheek, back of head
and shoulders,
[3] In the aftermath of
all that the plaintiff instituted proceedings against the defendant
under cover of
section 17
of the
Road Accident Fund Act 56 of 1996
.
[4] Per previous court
orders the merits were conceded 100 percent in favour of the
plaintiff and general damages settled at R800 000.00.
[5] This matter proceeded
before me on loss of earnings with the defendant having, as is now
standard reaction to these kinds of
actions, offered absolutely no
defense to the plaintiff’s claim having filed no reports to
assist with the determinations
to be made in that regard.
[6] The matter served
before this court in default with the plaintiff praying that I
determine loss of earnings as they arise from
the injuries sustained
in the said motor vehicle collision and their sequelae.
[7] To attend to the
issues which lay before me for determination the plaintiff sought and
was granted leave to prosecute his case
on paper in terms of Uniform
rules 38(2)
and
39
(1).
LOSS OF EARNINGS
[8] The main take homes
as to the injuries suffered by the plaintiff in this matter as per Dr
PWS Williams, the Orthopaedic Surgeon
having already been alluded to
supra, it only remains necessary for the balance of the uncontested
expert reports feeding into
the plaintiff’s case as to quantum
to be determined.
[9] The occupational
therapist, Mr Motlana opined in general that flowing from the
injuries and sequelae suffered by the plaintiff
he presents with
occupational dysfunction which would render him an unequal competitor
in the open labour market. This opinion
was derived from an
observation that the plaintiff had functional restrictions regarding
standing, walking, climbing, lifting and
bending all of which are
basic to the ability to do any work in the open labour market.
[10] Drs L T Kekana and
SAC Verhoef, educational psychologists engaged by the plaintiff
opined that the plaintiff suffered, because
of the accident, from
cognitive deficits which rendered him academically disadvantaged such
that even if he would, as he could,
his studies would not be any more
beneficial than for mere therapeutic purposes.
[11] Computations by Arch
Actuaries resulted in a total loss of earnings of R7 604 334.20
post the factoring in of 20%
contingencies for both past and future
loss. I was then addressed by counsel for the plaintiff to the effect
that from that amount
a previously paid interim payment of
R500 000.00 should be subtracted. That would less the amount
computed by the actuaries
to R7 104 334.20. From this
amount I must also less the amount of R11 894.00 computed by the
actuaries which amount
I find indefensible in the light of the
incontrovertible opimio of the industrial psychologist to the effect
that because at 10
years (the time of the accident) the plaintiff had
not yet entered the labour market there could not have been any past
loss. That
leaves the loss of earnings at R7 092 440.20.
[12]
In the backdrop of the above uncontested expert evidence and address
by counsel for the plaintiff, I must determine loss of
earnings
suffered by the plaintiff in respect of which the 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.”
[13]
This court has previously, in the unreported matter of
Makgoba
Malesela Freddy and Road Accident Fund (2121/2023) out of this
division and heard on 22 May 2024 and delivered on 28 August
2024,
made the following
remarks by which it still stands:
“
I
am a layman to all the disciplines of the experts who testified.
While I may not and should not merely rubberstamp their
recommendations
and must subject them to a test of looking into the
reasoning which went into their opinions, I should not and will not
allow myself
to be swayed by maudlin alarmist sensitivities in the
public domain emanating from either the defendant in casu which has
literally
abandoned and absconded from defending these actions which
flood our court rolls daily or that defendant’s apologists
whose
common mantra is to see any amount having six figures as
undeserved or as an attempt by plaintiffs to deceptively and greedily
milk the “cash-cow” that is the Road Accident Fund.”
[14] Regard being had to
how the experts in casu reasoned their opinions as alluded to supra
and reflected upon in argument before
me, I cannot in anyway bring
myself to fault the expert evidence led before me and readily accept
that evidence without any reservations.
I am also at ease with the
contingencies applied having taken counsel from the plaintiff’s
Industrial psychologist, Danushka
Jenkings, who recommended
considerably higher post-accident contingency deductions
[15] I understand the
need for contingencies to be informed by the speculative nature of
the work done by the learned experts employed
in the determination of
quantum which involve, in general, looking into uncertainties such as
life expectancy, future employment
or unemployment prospects, future
improvements or diminutions in working conditions prospects and a
host of other unknown variables
such as the economic viability of a
country. Those are factored in to either temper with amounts
postulated by actuaries downwards
or upwards, although practice has,
perhaps actuated by persuasions I lamented supra as referenced from a
previous unreported decision
of this court, developed to factor
contingencies only to what, at first blush, appear to be possibly too
high amount postulations.
[16] Given the age of the
plaintiff at the time of the accident which was a mere 10 years, the
expected longer life span expected
still, the unquestionably grave
sequelae as to physical and cognitive deficits, the fast depreciating
value of money in our current
downward economic slide and the
projections of a further bleak economic future which is more likely
to see the plaintiff unemployed
for life than not, I am disinclined
to see the amount arrived at by the experts as alluded to supra
as excessive.
[17] Resultantly, I make
the following order:
17.1
The defendant shall pay the plaintiff a total sum of R7 092 440.20
(
SEVEN MILLION
NINETY-TWO THOUSAND FOUR HUNDRED AND FOURTY RANDS TWENTY CENTS ONLY
)
in respect of the loss of earnings being damages suffered by the
plaintiff in relation to the motor vehicle accident in
casu
which occurred
20 October 2010.
17.2 The amount in order
number 22.1 above shall, within 180 days from date of this order, be
paid by direct transfer into the trust
account the details of which
shall be nominated by the Plaintiff’s attorneys of record.
17.3 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.
17.4 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.
17.5 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.
MALOSE.S. MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
13 June 2024
Judgement
delivered on
:
2 October 2024
For
the Plaintiff
:
T Sibiya
:
Instructed by Magabe Attorneys
:
Tel: - 015 296 0293
:
Email:
info@magabeattorneys.co.za
For
the Defendant
:
No appearance