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2024
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[2024] ZALMPPHC 143
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Mankgela v Road Accident Fund (6321/2021) [2024] ZALMPPHC 143 (11 October 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO:6321/2021
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
Signature:
Date: 11
th
OCTOBER 2024
In the matter between:
VINCENT SEKGOBELA
MANKGELA
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 25 September 2019. The plaintiff was a
driver of a motor vehicle at the time of the accident and according
to his uncontested
version he sustained injuries as he swerved his
motor vehicle to avoid colliding with another motor vehicle driven by
the insured
driver but ended up hitting a wall.
[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’s
failure to
make an election on the seriousness of the injuries in
casu, what stands to be determined before this court the is
plaintiff’s
loss of earnings with general damages having to be
postponed sine die.
[4]
Under cover of affidavit the plaintiff
adduced the following uncontested evidence in brief:
[4.1] Regarding the
merits the plaintiff tendered a damages affidavit, an accident report
as well as a section 19(f) affidavit which
spoke to the
supra-mentioned version of what happened which cannot, in the absence
of evidence from the defendant, be gainsaid.
[4.2] Accordingly I must
find that the defendant was 100 percent liable for the plaintiff’s
proven damages.
[4.3] Regarding the
extent of the injuries suffered by the plaintiff resulting from motor
vehicle collision, an Orthopaedic surgeon,
Dr Baloyi’s evidence
was in pith that the plaintiff had suffered a right femur fracture
which left him in permanent pain,
inability to stand for long and a
Whole-Body Impairment of 15 percent.
[4.4] Ms L T Sambo, an
occupational therapist, testified that the plaintiff suffers from
persistent headaches, occasional swelling
of the right foot, has
reduced ability in climbing stairs, bending, driving for long
distances and walking long distances. It was
opined here that the
accident had diminished his pre-accident employment capacity of light
to medium work to merely light. The
plaintiff having been employed as
a sales consultant prior the accident it was this witness’
opinion that the plaintiff may
basically be unable to perform
functions germane to that work; such functions as crouching,
standing, and climbing stairs.
[4.5] Ms C Goncalves, an
industrial psychologist, observed that the plaintiff earned at the
time of the accident, R5 000.00 a month
which translated to about R60
000.00. Post the accident the plaintiff had, owing to the accident,
not returned to his sales consultant
work and thus lost out on
probable career progression and general future potential of a better
economic life. It was further opined
by this witness that given the
high unemployment rate in the country, a physically compromised
person like the plaintiff was at
an even more prejudiced position
regarding employment prospects.
[4.6] Stephen Texeira, a
clinical psychologist’s evidence to the effect that owing to a
leg injury the plaintiff was suffering
from sequelae of
forgetfulness, going mentally blank and losing his trail of thought
was to this court’s mind a bit curious
as I could not
understand how a leg fracture could have cognitive sequelae.
[4.7] Actuarial
Quantification Services (AQS), Actuarial scientists, informed in the
main by the industrial psychologist’s
report, postulated a net
future loss of earnings at R3 355 911.00 having factored
contingencies at pre-morbid 10 percent past and
20 percent future as
well as post morbid 0 percent past and 50 percent future.
[5]
The approach in computation of loss of
earnings was stated in
Southern
Insurance Association v Bailie v NO 1984(1) SA 98(A) at
112E-114F|(“Bailie”)
where
the following was stated:
“
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 y way
of mathematical calculations on the basis of assumptions
resting on
the evidence. The validity of this approach depends of course upon
the soundness of the assumptions, and these may vary
from the
strongly probable to the speculative.”
[6]
In
Prince v
Road Accident Fund(ca143/2017) [2018] ZAECGHC 20(20 March 2018)
the
full court cautioned courts never to ignore loss of earnings
computations so long as those computations are having an evidential
basis.
[7]
This court has a point of departure, no
appetite to deviate from actuarial computations in this matter seeing
that they are premised
on the uncontroverted evidence of preceding
experts such as the Orthopaedic surgeon, the occupational therapist
and the industrial
psychologist whose evidence was reflected on in
sum supra.
[8]
Furthermore, having regard to the facts and
expert opinions already referred to above, particularly the
plaintiff’s relatively
young age of 27 years at the time of the
accident and consequent expected long life expectancy against the
backdrop of a very high
unemployment rate in this country, I am
persuaded that the contingency percentages for past and future loss
of earnings factored
in by the actuaries as already alluded to above
are fair and reasonable. Indeed, I find those contingencies to accord
with
Van der Plaats v Southern
African Mutual Fire and General Insurance Co 1980(3) SA 105(A)
114-115
which a long time ago spelt
out that contingency deductions must allow for the possibility that
the plaintiff may have less than
normal expectations of life and may
experience periods of unemployment flowing from accident sequelae and
is seen within the prism
of prevailing economic conditions.
[9]
I am furthermore counseled on contingencies
by
Dlamini v Road Accident Fund
(59188/13) [2015] ZAGPPHC 646(3 September 2015)
where,
inter alia, it was stated that:
“
Both
favorable and adverse contingencies have to be taken into account in
determining an appropriate contingency deduction. Bearing
in mind
that contingencies are not always adverse, the court should, in
exercising its discretion, lean in favour of the plaintiff
as he
would not have been placed in the position where his income would
have to be the subject of speculation if the accident had
not
occurred
.”
[10]
Although I am in the main inclined to award
loss of earnings as computed by the expert actuarial scientists, I
am, as already stated
above, uncomfortable with the opinion of the
clinical psychologist. For that reason, I am of a mind to interfere
with the computed
amount employing thus a hybrid of the
Bailie
notions of a mathematical
calculations
and
a
judge’s
round
estimate.
That
takes
me
to
a
round
estimate
of
R3 000 000.00 and that is what I am inclined to order.
[11]
I thus make the following order:
[11.1] The defendant is
100 percent liable for damages suffered by the plaintiff arising from
the motor vehicle accident of 25 September
2019.
[11.2] The defendant
shall pay an amount R 3 000 000.00(
THREE
MILLION
RANDS ONLY
) in respect of loss of earnings.
[11.3] 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:
LESHILO ATTORNEYS BANK: FNB
ACCOUNT NUMBER: 6[...]
REFERENCE NUMBER:
2022/JM/RAF/LKL/121
[11.4] 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
[11.5] Should the
defendant fail to pay the amount in 11.2 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.
[11.6] The issue of
general damages is postponed sine die.
MALOSE S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 10 June 2024
Judgment delivered
on
: 11 October 2024
For the
Plaintiff
: Adv. L F Makgopa
:
Instructed by Leshilo Attorneys
:
Tel: - 015 280 0070
:
Email:
Leshiloattorneys1@gmail.com
For the
Defendant
: No appearance