About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 150
|
|
Boshomane v Road Accident Fund (235/2017) [2024] ZALMPPHC 150 (24 October 2024)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE
NO:235/2017
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED
Signature:
Date:
In the matter between:
BOSHOMANE
MACHUENE KENETH
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MONENE AJ
INTRODUCTION
[1] On 22 August 2008 the
plaintiff, a major male former school principal, was a passenger in a
motor vehicle when the motor vehicle
driven along the N1 road
ploughed into two cows and overturned.
[2] Upon receipt of
medical attention the plaintiff was determined to have suffered a
blunt chest injury, knee injury, and head
injury.
[3] In the aftermath of
all that he instituted proceedings against the defendant under cover
of
section 17
of the
Road Accident Fund Act 56 of 1996
( “the
Act”).
[4] The defendant who had
initially raised a special plea of prescription as part of a bare
denial plea and later withdrew that
special plea per court before
Muller J dated 7 September 2017 offered absolutely no defense to the
plaintiff’s claim having
failed to file any expert reports and
failing to show up for trial despite being properly served with a set
down.
[5] The matter served
before this court in default with the plaintiff praying that I
determine the question of liability, the loss
of earnings and the
need for the defendant to be ordered regarding an undertaking in
respect of the future medical needs of the
plaintiff to the extent
that those medical needs would be arising from the injuries sustained
in the said motor vehicle accident.
General damages fell to be
postponed sine die it being so that this court’s jurisdiction
thereon was ousted by the precedence-imposed
question of the
seriousness of the injuries having neither been conceded by the
defendant nor ordered by the court in terms of
regulation 3
of the
regulations of 2008 promulgated in terms of the Act.
[6] To attend to the
issues which lay before me for determination the plaintiff applied
for and was granted leave to prosecute his
case on paper in terms of
Uniform
rule 38(2).
MERITS
[7]
In
Groenewald v
Road Accident Fund (74920/2014)[2017] ZAGPPHC 879(5 October 2017)
at para 3, Mavundla J stated the
following:
“
It
is trite that the
plaintiff, as a passenger claimant, need to prove only 1% negligence
on the part of the driver in order to succeed
with her claim against
the defendant…”
[8]
In the unreported judgement of
Mukansi
v Road Accident Fund (22/2013) [2024] ZALMPPHC 101(3 September 2024)
at paragraph 8
this court made the following remarks
which I find apt in casu as well:
“
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.”
[9]
In casu
there
is nothing to gainsay the following:
9.1 That the plaintiff
was a mere passenger in the motor vehicle which overturned upon
hitting two cows on the road, overturned
and fatally wounded the
driver.
9.1 That if the driver
had kept a proper lookout and/or driven slowly he would have avoided
driving into the cows.
9.3 That the plaintiff
did not and could not have contributed in any manner in the causation
of the accident.
9.4 That according to the
pre-trial minute between the parties the defendant the defendant,
apparently unaware of a court order
wherein it had withdrawn its
special plea of prescription, had undertaken to tender a liability
concession in favour of the plaintiff
the existence of the withdrawal
order was brought to the defendant’s legal representatives.
[10] The plaintiff’s
version on liability is unassailable more so because it was not
opposed by any evidence by the defendant
who was virtually a no-show.
The proverbial one percent negligence on the part of the insured
driver is, in my view, sufficiently
proven.
[11] In the premises, I
find that the defendant is hundred percent liable for the plaintiff’s
proven damages.
LOSS OF EARNINGS
[12] As already alluded
to supra the main take homes as to the injuries suffered by the
plaintiff in the accident were blunt chest,
knee and head injuries as
testified to under cover of affidavit by Dr L D Ramushu, an
orthopedic surgeon who was testifying for
the plaintiff. The sequelae
of those injuries were recorded as left knee pains, an inability to
stand and walk for long as well
as an inability to carry heavy stuff.
The orthopedic surgeon further opined that the plaintiff had suffered
serious long-term impairment
or loss of body function, had reached
maximum medical improvement and had a Whole Person Impairment of 14
percent.
[13] The neurosurgeon, Dr
A Mazwi opined that the plaintiff had a mild head injury, brief loss
of consciousness, amnesia and severe
long-term behavioral disturbance
and disorder.
[14] Mr Stephen Molepo
the clinical psychologist testified that while the plaintiff
presented with intact auditory memory, he was
symptomatic of
emotional adjustment disorders opining in that regard as follows:
“
The
clinical picture emerging from the results of his clinical and
neuropsychological assessment is consistent with that of depressive
disorder, somatic symptoms disorders, as well as adjustment
disorders. There were indications of mild neuropsychological
difficulties…”
[15] The occupational
therapist, Ms. Sarah Marule, observed that the plaintiff could
post-morbid no longer be able to perform his
pre-morbid duties as a
school principal owing to pain and inability to walk and stand for
long. He had, it was observed, been forced
into early retirement by
the sequelae of the injuries he sustained in the motor vehicle
accident. It was stated further by this
witness that but for the
accident the plaintiff would not have stopped working.
[16] T Maitin, the
industrial psychologist’s expert contribution to the evidence
was that with the help of collateral information
from the plaintiff’s
immediate supervisor, the circuit manager of the Capricorn North
District, it was determined that after
the accident the limping and
forever sickly plaintiff was incapable of coping with the demands of
his job as a school principal.
This expert observed that at the time
of the accident the plaintiff was 45 years of age earning an annual
salary of R214 578.00
which would in the expert witness’
opinion have to R476 011.25 by December 2013 and to R521 241.00
in December
2022 which would have been his retirement age at age 60
years. This witness determined that owing to having been forced into
early
retirement by the sequelae of the injuries sustained in the
motor vehicle accident the plaintiff loss of earnings both in the
past
and in the future.
[17] Relying heavily on
the industrial psychologist’s report Tsebo Actuaries postulated
a net past loss at R1 429 388.00
and a future loss at
R1 612 047.00 having factored contingencies at 5 percent
uninjured and 2 percent uninjured for past
loss and 15 to 35 percent
for future loss. This resulted in a possible award of R3 041 435.00.
[18]
In the backdrop of the above uncontested expert evidence, 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.”
[19] Layman as I am to
actuarial computations, I have no intention of blindly plunging into
the dark unknown world of speculation
when at my disposal I have what
I consider to be competently reasoned expert reports, particularly by
the neurosurgeon, industrial
psychologist and actuarial scientists.
[20] I cannot fault the
expert evidence led before me in any manner and readily accept that
evidence without any reservations.
[21] What remains for me
is to determine whether in my discretion, contingencies as applied by
the actuarial scientists are, in
the circumstances of the case, fair,
it being trite that the factoring in of a contingency percentage is
purely a discretion of
the court.
[22] Given the fact that
post the accident the plaintiff was unable to work as a principal or
to work at all and was forced to dig
into his pensions earlier than
expected and further that at age 45 when the accident occurred he was
not really a youngster, as
well as the life expectancy rate which is
not necessarily at post-retirement even for those who do not get
involved in any accidents
and therefrom become incapacitated, and the
fact that post the accident in 2018 the plaintiff did continue
working with a normal
salary up to 2013,I find that the contingencies
already applied are fair and just.
[23] However, I cannot
order the amount computed by the actuarial scientists as is even
though I was per evidence persuaded to order
it. My hands are tied.
The pleaded amount in the plaintiff’s particulars of claim
regarding loss of earnings is R 2000 000.00
and it falls short of the
amount led into evidence. There has been no amendment of the
particulars of claim, either through the
formal
rule 28
route or
informally from the bar. Parties are, as far as I know, bound to
their pleadings. They cannot plead a case at a particular
amount and
nonchalantly prove another amount, particularly a higher one at
trial. With hands firmly handcuffed behind my back by
the plaintiff I
can, in the circumstances, order only up to what was pleaded. To this
amount or to whatever loss of earnings award
I make, counsel for the
defendant argued that I should deduct an amount of R300 000.00
allegedly received by the plaintiff
ostensibly as a lump sum pension
payout upon his early retirement. He was making this argument as he
put it, on the plaintiff’s
own papers and reports and arguing
that the industrial psychologist and the actuary ought to have
factored that amount into deductibles
from the loss of earnings. I
was not persuaded by this submission at all not only because the
argument was some incongruent attempt
at arguing the collateral
source rule but because that amount was not proven by the defendant
and could not because the defendant
did not lead any evidence before
me.
FUTURE MEDICAL
TREATMENT
[24] While it is true
that given the injuries suffered by the plaintiff he may in future
need medical care, I consider the arguably
liberal compensation award
for a pensioner granted for loss of earnings and the fact that the
plaintiff is already receiving pension
to be sufficient for him
attend to his medical needs in a manner he would have been probably
medically insured during his employment
as a senior educator.
[25] Accordingly I deem
it not necessary for me to order anything towards an undertaking, an
order which, although I have seen courts,
including this one order
routinely, is, in my view, a curiosity given the applicable legal
instruments in these RAF matters.
[26] In those premises I
am disinclined to order an undertaking for future medical care.
ORDER
[27] Resultantly, I make
the following order:
[27.1] The defendant is
liable for 100% of the plaintiff’s proven damages arising from
the injuries and sequelae flowing from
the motor vehicle accident of
22 August 2008.
[27.2]
The defendant shall pay the plaintiff a total sum of R2 000 000 .00
(
TWO MILLION RANDS
ONLY
) in respect of
the total loss of earnings suffered by the plaintiff in relation to
the motor vehicle accident in
casu.
[27.3] The amount in
order number 26.2 above shall, within 180 days from date of this
order, be paid by direct transfer into the
trust account of the
plaintiff’s attorneys of record the details of which must be
provided to the Defendant within 14 days
of this order being granted.
[27.4] 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.
[27.5] 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.
[27.6] 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 failing which interest at the prescribed
rate shall commence to
run until date of payment.
[27.7] The issue of
general damages is postponed sine die.
MALOSE.S.
MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard on
:
21 June 2024
Judgement delivered
on
: 24 October 2024
For the
Plaintiff :
Adv. S Moyo
:
Instructed by Mashabela Attorneys Inc.
:
Tel: - 015 291 2414
:
Email: admin@mashabelainc.co.za
For the
Defendant :
Mr C Mafiri
:
Instructed by State Attorney, Polokwane