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2024
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[2024] ZALMPPHC 153
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M.L.N obo M.S.S v Road Accident Fund (9805/2023) [2024] ZALMPPHC 153 (23 October 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO:9805/2023
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED
Signature:
Date:
23 OCTOBER 2024
In
the matter between:
M[...]
L[...] N[...]
obo
M[...] S[...]
S[...]
PLAINTIFF
And
ROAD
ACCIDENT FUND.
DEFENDANT
JUDGMENT
MONENE
AJ
[1]
On 1 November 2021 S[...] S[...] M[...], a minor child of the
plaintiff was a passenger
in a motor vehicle, to wit a bakkie, which,
when it hit a pothole and or a speedbump while travelling at a very
high speed, caused
the minor child to fall off the motor vehicle and
sustain injuries.
[2]
As a result of this incident the minor child sustained injuries
recorded as severe
head injury and various bodily soft tissue
injuries.
[3]
The plaintiff, biological mother to the minor child, instituted
action proceedings,
on behalf of her minor child, against the
defendant for damages arising from that accident.
[4]
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
in terms
of uniform rule 38(2) was positively responded to by the
court.
[5]
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 is the liability and the
plaintiff’s loss of earnings with general damages
having to be
postponed
sine die.
LIABILITY
[6]
Section 17(1)
of the
Road Accident Fund Act 56 of 1996
provides that
the defendant should compensate any person for loss or damage arising
from injuries sustained because of the negligence
of a driver of a
motor vehicle on the road.
[7]
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, emphasis 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.”
[8]
Under cover of affidavit the plaintiff adduced the following
uncontested evidence
in the form of
section 19(f)
affidavit as well
as a default judgment damages affidavit where she recorded that it
was the negligence of the bakkie motor vehicle
who caused the
injuries sustained by the minor child in that he drove at an
excessive speed and failed to keep a proper lookout.
[9]
There was no evidence led by anyone to gainsay this version at all
and accordingly
I do not have to struggle to find that the proverbial
one percent negligence on the part of the bakkie driver has been
proven,
clearing the way for the defendant to be found liable for 100
percent of the plaintiff’s proven damages.
[10]
Accordingly I must find that the defendant is 100 percent liable for
the plaintiff’s proven
damages.
QUANTUM
(LOSS OF EARNINGS)
[11]
In pith and in substance the evidence led by the plaintiff under
cover of affidavit in terms
of Uniform
rule 38(2)
was the following:
11.1 Dr
D Boungou-Poati, the neurosurgeon testified, in the main that,
arising from the injuries sustained in
the accident the minor child
suffered a mild traumatic brain injury and is post the accident
evincing features of attention deficit
hyperactivity disorder.
11.2
The educational psychologist, M Lautenbach, opined that the minor
child is post- morbid forgetful and generally
lacks concentration. It
was further observed by this expert that the child probably needs to
be diverted from normal schooling
to a special needs school. However,
it was still likely that this minor child may reach grade 12, opined
this expert.
11.3 Dr
R S Leshilo, a psychiatrist found the minor child to be incapable of
playing with other children because
he was now moody, aggressive and
generally disruptive in all social contexts. This expert determined
the minor child to be uncooperative
with teachers and to be seeing
schoolwork as unnecessarily burdensome, it was further determined by
this witness that going forward
the minor child will need continuous
conduct disorder or psychiatric intervention. His cognitive
challenges resulting from the
sequelae of the accident, it was opined
further by this witness, may worsen as the minor child grows into an
adult. Currently,
the cognitive incapacities arising from the
accident make the child unable to manage his academic and personal
affairs.
11.4
The occupational therapist, S Doorasamy, stated that even with
long-term intervention to ameliorate the minor
child’s
cognitive deficits, the child will at the terminal end of his school
years need vocational skills training which
may assist him in the
future regarded sheltered or sympathetic employment that. That
sheltered employment could only now, post-morbid
be in sedentary and
light to medium works only
11.5 M
N Del Valle, the plaintiff’s industrial psychologist made a
postulation that the minor child’s
pre-morbid occupational
prospects would have taken him post matric from unskilled work to
semi-skilled employment and then with
upskilling to the upper
quartile of semi-skilled. He would have, it was opined further,
worked until retirement at age 65 years
with uninjured contingencies
of employment opportunities, improvement in education levels, job
performance and possible retrenchments
and early death not being
disregarded. Post-morbid the minor child was now less likely to
complete NQF Level 1 as his academics
may worsen because of the
already stated possible further decline in cognitive abilities. The
industrial psychologist further opined
that because of the cognitive,
emotional and psychosocial deficits suffered by the minor child, he
was going to be a vulnerable
member of the labour market in an
unstable job-shedding environment.
11.6 Mr
Sauer, an Actuarial scientist, informed in the main by the industrial
psychologist’s report, which
itself summarised all other expert
reports preceding it, postulated a net future loss of earnings at R2
325 813.00 having factored
contingencies at a 20 percent to 40
percent spread.
[12]
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.”
[13]
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 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 educational psychologist, the psychiatrist, the neurosurgeon,
the
occupational therapist, the industrial psychologist.
[14]
Furthermore, having regard to the facts and expert opinions already
referred to above, particularly
the minor child’s relatively
young age of 11 years at the moment and consequent expected long life
expectancy against the
backdrop of a very high unemployment rate in
this country and the forever present reality of possible early death,
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.
[15]
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.”
[16]
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
[17]
According to the the plaintiff’s minor child will in the next
three years need neurosurgical
intervention to deal with the trauma
flowing from the accident.
[18]
According to the psychiatrist the child will need outpatient
psychotherapy for a period of a
year and there is, furthermore, there
is a likelihood that he may need in- hospital psychiatric treatment
in future.
[19]
The occupational therapist opined that to address cognitive
deficiencies, emotional difficulties
and delays in academic skills
development, the minor child will need weekly occupational therapy
sessions.
[20]
The plaintiff has thus, in my view, successfully mounted a case for
an undertaking in terms of
section 17(4)(a) of the Act. Whether it is
competent of this court to expressly order an “undertaking”
is a question
I will not answer today as precedence in this RAF
matters has seen such an order made.
[21]
In the result, I make the following order:
[21.1] The defendant is
100 percent liable for damages suffered by the minor child of the
plaintiff arising from the motor vehicle
accident of 1 November 2021.
[21.2] The defendant
shall pay an amount R2 325 813.00
(TWO MILLION THREE HUNDRED AND
TWENTY-FIVE THOUSAND EIGHT HUNDRED AND THIRTEEN RANDS ONLY)
in
respect of loss of earnings.
[21.3] The said amount
shall be paid into the trust account nominated by the plaintiff’s
attorneys of record within 14 days
of this court order by direct
transfer within 180 days of this court order being delivered:
[21.4] 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:
[21.5] Should the
defendant fail to pay the amount in 21.2 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:
[21.6] 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:
[21.7] The issue of
general damages is postponed sine die.
MALOSE
S MONENE
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 26 June 2024
Judgment
delivered on : 23 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