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2024
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[2024] ZALMPPHC 142
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M.M obo M.M v Road Accident Fund (622/2022) [2024] ZALMPPHC 142 (17 October 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:622/2022
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
Signature:
Date: 17
th
October 2024
In the matter between:
M...] M[...] obo M...]
M...]
PLAINTIFF
And
ROAD ACCIDENT FUND.
DEFENDANT
JUDGMENT
MONENE AJ
[1]
On 4 May 2019 12-year-old M[...] M[...],
then about 5 years of age, was a passenger on a motorbike driven by
one Mr Ledwaba when
the motorbike was involved in a collision leaving
M[...] with a right distal femur fracture.
[2]
The plaintiff, biological mother to M[...],
instituted action proceedings, on behalf of her minor child, against
the defendant for
damages arising from that accident.
[3]
The defendant did not defend this action
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 plea to proceed to proceed in terms of uniform
rule 38(2) was positively
responded to by the court.
[4]
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 there is plaintiff’s
loss of earnings with general damages having to be postponed
sine
die
. Although the plaintiff’s
submissions in the heads of argument suggest rather incongruently and
somewhat contradictorily
that the merits in this matter were settled
100 percent in favour of the plaintiff following an offer made by the
defendant, I
could find neither the offer (which perhaps also spoke
to general damages) nor an order of court on the merits in this
matter.
I thus must therefore, even if it turns out to be
ex
abudante cautela
, determine the merits
first.
LIABILITY
[5]
Under cover of affidavit the plaintiff
adduced the following uncontested evidence regarding liability:
[5.1] 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.
[5.2] As the minor child
of the plaintiff was a passenger in the accident the proverbial 1
percent negligence on the part of the
motorbike driver is absent any
suggestion that she did anything to contribute to the accident and in
circumstances where her version
is uncontested, the lowest hanging of
fruits.
[5.3] In the unreported
matter of
Mukansi v Road Accident Fund (Case Number 22/2013)
out of this division delivered on 3 September 2024 at paragraph 8
this court, dealing with passenger claims, made the following
remarks which deserve, in my view, repetition in
casu
:
“
I
struggle to fathom why negligence on the part of an insured driver
is, in passenger claims, sometimes treated as some brainteaser
because, save for where the passenger somehow took over or hijacked
or interfered with the act of a driver by perhaps contesting
over
control of the steering wheel of a motor vehicle or the acceleration,
clutching or braking system or perhaps frustrating the
driving
function in any manner, there is simply no way a passenger can be
liable for a motor vehicle accident.”
[5.4] Accordingly I must
find that the defendant is 100 percent liable for the plaintiff’s
proven damages.
QUANTUM
[6]
Regarding the extent of the injuries
suffered by the plaintiff resulting from motor vehicle collision both
Drs M B Deacon and L
F Oelofse, the Orthopaedic surgeon and the
neuropsychologist respectively, testified that the minor child
suffered a fracture of
the right distal femur and were in agreement
that the sequelae of that fracture were serious long-term impairment
of the right
leg function, continuous physical pain, decreased
mobility, decreased ability to perform functions as a result of
inability to
lift heavy objects and inability to walk properly.
[7]
Ms Mari Lautenbach, an educational
psychologist, testified that the plaintiff suffers from persistent
headaches, diminished memory
and cognitive deficits arising from
initially not observable head injuries sustained in the accident. It
was further opined by
this witness that the trauma of the accident is
likely to bring personality changes to the child. But for the
accident, this witness
further opined, the minor child would most
likely have been able to attain NQF 5 level certificate but was now
likely to only reach
NQF level 1 provided the cognitive deficiencies
do not become more pronounced with age and time. With the
post-accident forgetfulness,
impaired reading and writing and
generally compromised physical, cognitive and psychosocial abilities
it was opined the that minor
child’s scholastic performance and
thus future employment options were seriously negatively affected.
[8]
The occupational therapist, N Hassim,
confirmed that the minor child’s compromised overall being
would negatively affect her
schooling and options on the open labour
market.
[9]
The industrial psychologist, M Baig,
corroborated the view that the impairments on the minor child would
negatively affect her scholastic
and occupational functioning and
negatively impact her job performance if at all she got employed,
diminish her productivity, her
career progression chances and her
earning capacity. This witness set down the parameters for loss of
earnings computation as being
the difference between her pre-morbid
earning potential at NQF5 and post-morbid doubtful earning potential
at NQF level 1.
[10]
Mr Sauer, an Actuarial scientist, informed
in the main by the industrial psychologist’s report, which
itself summarized all
other expert reports preceding it, postulated a
net future loss of earnings at R5 279 852.00 having factored
contingencies at 20
percent and 40 percent.
[11]
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.”
[12]
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. I thus, in general, have 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, the industrial psychologist
and
in particular the educational psychologist whose evidence was
reflected on in sum above.
[13]
Furthermore, having regard to the facts and
expert opinions already referred to above, particularly the
plaintiff’s relatively
young age of 12 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 loss of earnings factored
in by the actuarial
scientist 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.
[14]
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
.”
[15]
I am accordingly inclined to award loss of
earnings as computed by the expert actuarial scientist.
UNDERTAKING IN TERMS OF
SECTION 17(4)(a) OF ACT 56 OF 1996
[16]
According to the educational psychologist
the plaintiff’s minor child will in future need psychotherapy
to deal with the trauma
flowing from the accident.
[17]
According to the Orthopaedic surgeon the
child will need build up orthosis for life to deal with leg length
discrepancy as well
as physiotherapy and further rehabilitative
treatment.
[18]
In general all experts are agreed that the
injuries suffered in the accident militate for continued medical care
in the future.
[19]
The plaintiff has thus, in my view,
successfully mounted a case for an undertaking in terms of section
17(4)(a) of the Act.
[20]
I thus make the following order:
[20.1] The defendant is
100 percent liable for damages suffered by the minor child of the
plaintiff arising from the motor vehicle
accident of 4 May 2019.
[20.2] The defendant
shall pay an amount R R5 279 852.00 (
FIVE MILLION TWO HUNDRED AND
SEVENTY-NINE THOUSAND EIGHT HUNDRED AND FIFTY-TWO RANDS ONLY
) in
respect of loss of earnings.
[20.3] 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: A J
ALDERSON INC TRUST
BANK: FIRST NATIONAL BANK
ACCOUNT NUMBER: 6[...]
REFERENCE NUMBER:
L204/M[...]
[20.4] 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
[20.5] Should the
defendant fail to pay the amount in 19.2 above within the 180 days
and/or the agreed to or taxed costs within
30 days of taxation or
agreement; the plaintiff shall be entitled to recover interest
thereon on the prescribed rate of interest
from the due date to date
of final payment.
[20.6] The defendant
shall furnish the plaintiff with an undertaking in terms of the
provisions of section 17(4)(a) of the Road
Accident Fund Act 56 of
1996 within 60 days of this order being granted.
[20.7] The issue of
general damages is postponed sine die.
[20.8] It is ordered that
a trust be established for and on behalf of M[...] M[...], the minor
child, in the jurisdiction of the
Polokwane Master’s office and
in that regard further ordered that:
20.8.1
A trustee be appointed.
20.8.2
The amount received into the attorneys’
trust account as per order 19.3 above be kept in an
interest-bearing account
pending the establishment of the trust
whereafter the capital and interest is to be paid into the bank
account of the trust upon
establishment.
20.8.3
The trust shall be in operation until the
minor child M[...] M[...] reaches the age of 21 years.
MALOSE
S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 10 June 2024
Judgment delivered
on : 17 October 2024
For the
Plaintiff
: Adv. J Bam
:
Instructed by A J Alderson Inc
:
Tel: - 064 508 7053
:
Email:
highcourt@ajatt.co.za
For
the Defendant
: No appearance