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2024
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[2024] ZALMPPHC 149
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Kgatle v Road Accident Fund (2301/2021) [2024] ZALMPPHC 149 (24 October 2024)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE
NO:2301/2021
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
Signature:
Date:
In the matter between:
EMMANUEL
KIRI
KGATLE
PLAINTIFF
And
ROAD
ACCIDENT
FUND.
DEFENDANT
JUDGMENT
MONENE AJ
INTRODUCTION
[1] The plaintiff,
51-year-old legal practitioner instituted action proceedings against
the defendant for damages arising from a
motor vehicle accident which
occurred on 8 December 2019. The plaintiff was a driver of a motor
vehicle at the time of the accident
and according to his ultimately
uncontested version he sustained injuries as he collided with another
motor vehicle driven by the
insured driver on the R101 road between
Polokwane and Mokopane.
[2] The defendant which
initially defended the matter up to the point of filing a plea,
folded on 29 May 2023 when before Kganyago
J it conceded 100 percent
liability in favour of the plaintiff and accepted to pay an interim
payment of R650 000.00 to the
plaintiff.
[3] As regards quantum
the defendant did not really 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).
[4] It being now trite
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. A
further determination to be made is whether the defendant
should be
ordered to, if it can be done in law, make an undertaking for future
medical care in terms of section 17(4)(a) of Act
56 of 1996.
LOSS OF EARNINGS
[5] Under cover of
affidavit the plaintiff adduced in sum the following uncontested
evidence:
[5.1] The orthopedic
surgeon, Dr TT Rachoene recorded the key injuries suffered by the
plaintiff in the accident as a right femur
fracture and a Montagia
fracture which was explained as a right proximal ulna fracture with
radial head dislocation. This witness
testified further that the
plaintiff has a whole-body impairment of 16 percent and that he had
reached the ceiling of his healing
or possible medical improvement,
meaning that whatever sequelae of the injuries the plaintiff has can
only be managed and not cured.
[5.2] Dr Akhona Mazwi the
neurosurgeon’s evidence was to the effect that the plaintiff
had, in the accident, picked up a mild
head injury which resulted in
difficulty with concentration, recurrent headaches, significant long
term mental disturbances and
poor memory. This expert opined further
that arising from the accident the plaintiff significant long term
mental disturbances
and permanent serious disfigurement. Dr Mazwi
emphasized his findings as follows:
“
The
head injury is a direct result of the accident. The memory
disturbance and poor concentration are due to the head injury…The
claimant has significant mental disturbance, and it is fair to
compensate the claimant. In conclusion, the claimant should be
compensated for general damages, future treatment and loss of earning
capacity.”
[5.3] Ms Lebogang Phildah
Selahle, a clinical psychologist, opined that the plaintiff falls
within moderate traumatic brain injury
qualifying him to be
moderately disabled and telling are her following words which are
taken verbatim from her report:
“…
Emmanuel
met criteria for significant long term mental and significant long
term disturbance as per RAF 4…”
[5.4] The occupational
therapist, Ms Phinecia Pale an occupational therapist, observed that
not only is the plaintiff heavily reliant
on pain medication to
relieve recurrent headaches and lower back pain but he had stayed
away from work for eight months post the
accident because of the
injuries sustained in the accident and their sequelae. Classifying
the plaintiff as a skilled worker in
the category of medium physical
demands, this witness opined that the job analysis according to Ergo
science evaluation table indicated
that the plaintiff is unable to
cope with some of the performance tasks for a legal practitioner in
the open labour market and
mainstream skilled employment. Ms. Pale
put her key expert determinations, inter alia, in the following
words:
“
Should
he lose the current job he will struggle to cope with employment that
demands constant standing. His job is physically and
cognitively
demanding, therefore injuries sustained put him at risk of being
unable to perform a job that he has qualifications
for…He will
also struggle with concentration, problem solving and attention due
to constant headache. His constant headache
will also affect him
negatively when he has to study client files when preparing for
court… In this regard, Mr Kgatle presents
with memory
impairments. The writer further notes in this regard, that his
ability to manage his business has in all likelihood
been compromised
as a result of his outlined deficits, he will in all likelihood
remain a vulnerable individual in the open labour
market.”
[5.6] The industrial
psychologist, Zaheer Fakir, who observed that the plaintiff, a legal
practitioner who at the time of the accident
was employed on a
short-term contract as an Acting Magistrate went on to give the
following opinions:
5.6.1 Although the
plaintiff continues to work as an attorney after his Acting
Magistrate contract expired, he struggles at the
job owing to
deficits already alluded to above and would struggle to secure
employment should his practice fold owing to his incapacities.
5.6.2 The accident has
left him as a vulnerable worker in the open labour market.
5.6.3 But for the
accident the plaintiff would have continued in his capacity as a
magistrate or attorney making a progressively
increasing income as
dictated by inflationary increases until he reached retirement age at
65.
5.6.4 A higher than
normal contingency had to be applied to address the plaintiff’s
increased vulnerability.
5.6.5 At the time of the
accident in 2019 he was earning a monthly Acting Magistrate salary of
R56 679.52 which translated
to R680 154 .00 per annum and
was in 2023 earning R15 000.00 per month or R180 000.00 per
annum as an attorney.
[5.7] Informed in the
main by the industrial psychologist’s report, Tsebo Actuaries,
postulated a total future loss of earnings
at R4 685 446.00
having factored contingencies at pre- and post-morbid past loss at 5
percent and 15 percent overall
for future loss of earnings.
[6]
Although I was referred to several authority by counsel for the
plaintiff on preferability of computation being better informed
by
science based actuarial calculations as opposed to judicial
guesswork, which authority I acknowledge and agree with, the go
to
approach in loss of earnings computation, forever preferred by this
court, was long ago outlined in
Southern
Insurance Association v Bailie v NO 1984(1) SA 98(A) at
112E-114F|(“Bailie”)
in
the following words:
“
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.”
[7]
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.
[8]
This court has as 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 neurosurgeon, the occupational
therapist and
the industrial psychologist whose evidence was reflected on in sum
supra. I am, in my disinclination to plunge into
the unknown world of
speculation, indeed counseled as called on to by the plaintiff in his
written submissions by
Mashaba v RAF
4 All SA 384(T)(2
March 2006) at paras 49 to 56
where
in general actuarially computed amounts were encouraged over lump sum
determination with lump sum judicially determined amounts
being the
odd exception
[9]
Furthermore, having regard to the facts and expert opinions
already referred to above, particularly the plaintiff’s
relatively young age of 51 years now in the light of the longer than
normal working life of legal practitioners and the probably
more true
than not true reality that the plaintiff will not survive as a legal
practitioner for long regard being had to the cognitive
sequelae of
the injuries such as poor memory, poor concentration and recurring
headaches all against the backdrop of a very high
unemployment rate
in this country more likely to be faced by a plaintiff lacking in
alternatives to what he studied for, 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 must be seen within the
prism of
prevailing economic conditions.
[10] I am persuaded by
the well-reasoned uncontroverted expert evidence led under cover of
affidavit in terms of uniform rule 38(2)
and see no reason to deviate
an inch therefrom. That takes me to the actuarial scientists computed
total loss of earnings of R4 685 446.00
from which I must
subtract the interim payment of R650 000.00 ordered in favour of
the plaintiff on 29 May 2023.
FUTURE MEDICAL
EXPENSES
[11] According to the
Orthopaedic surgeon the plaintiff will going forward need
physiotherapy treatment and pain medication in addition
to possible
surgical treatment.
[12] The clinical
psychologist, Mrs. Ace Dede Selahle stated as follows, about the
plaintiff, in her report:
“
Unique
rehabilitation needs of a person with moderate traumatic brain injury
may not be fully met in acute care, it is important
that treatment
continues for the rest of his life.
”
[13] The neurosurgeon
recommended, in addition to compensation, that the plaintiff must be
afforded future treatment.
[14] In the premises I
find that a case for future medical care undertaking has been made
and will, reservations this court on its
availability and efficacy
notwithstanding, because of precedence, be ordered.
[15] In the result I make
the following order:
[15.1]
The defendant shall pay an amount R 4 035 446.00(
FOUR
MILLION THIRTY-FIVE THOUSAND FOUR HUNDRED AND FOURTY SIX RANDS ONLY
)
in respect of loss of earnings.
[15.2] The said amount
shall, within 180 days of this court order being granted, be paid by
direct transfer into an attorneys’
trust account nominated by
the plaintiff’s attorneys within 14 days of this court order
being granted.
[15.3] 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
[15.4] Should the
defendant fail to pay the amount in 15.1 above within the 180 days
and/or the agreed to or taxed costs within
30 days of such agreement
or taxation, the plaintiff shall be entitled to recover interest
thereon at the prescribed rate of interest
from the date of mora to
date of final payment.
[15.5] 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.
[15.6] The issue of
general damages is postponed
sine die
.
MALOSE S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard on
:
24 June 2024
Judgment delivered
on
: 24 October 2024
For the
Plaintiff
: Adv. M D Matshethe
:
Instructed by HLM Mamabolo Attorneys
:
Tel: - 015 297 7005
:
Email: hlm@hlmlegal.co.za
For the
Defendant :
No appearance