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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1) REPORTABLE: ¥&S-/ NO
(2) OF INTEREST TO THE JUDGES: ¥&S-/ NO
(3) REVISE ~
Signature ·····-····
Date ........................ .
In the matter between:
MAKGABO MICLAS MOTHOTSE
And
ROAD ACCIDENT FUND.
JUDGMENT
MONENE AJ
CASE NO:553/2024
PLAINTIFF
DEFENDANT
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[1] On 29 August 2020,the plaintiff then a 42 year old male truck driver in the employ
of the Polokwane Municipality, was standing behind a truck driven by a colleague of
his and in the process of directing and guiding the driver on how to reverse a
municipality truck when the truck reversed onto him smashing and crushing him
against a wall in the streets of the city of Polokwane.
[2] Arising from this incident the plaintiff instituted action proceedings pursuant the
Road accident Fund Act 56 of 1966 ("the Act) claiming compensation for the injuries
he sustained and blaming his colleague, the insured driver, for sole negligence in the
causation of the accident
[3] The defendant filed nothing in defence of the plaintiff's claim and thus filed nil
reports pertaining to merits and quantum determination.
[4] Regarding both liability and quantum the plaintiff proceeded before this court per
default and sought and was granted leave to prosecute his case in terms of Uniform
Rule 38(2).
[5] Under cover of affidavit the plaintiff adduced the following uncontested evidence
in brief:
MERITS (LIABILITY)
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5.1 Regarding liability the plaintiff relied on his section 19(f) of the Act affidavit
confirming the supra-stated version and emphasizing that had the insured
driver exercised caution as he reversed the truck, kept a proper lookout and not
reversed the truck at a very high speed, the accident would have been avoided.
He took no portion of the blame for the accident indicating that given the high
speed engaged in by the truck driver there was nothing that he could have done
to avoid being hit and crashed against the wall. Added to his sworn evidence
mix was the hospital records which only served to confirm the uncontested
version that on the said date he was hospitalized following the incident.
5.2 Absent any evidence to countervail that of the plaintiff and without any
reason to find his evidence incredible or improbable, I have no option but to
accept the plaintiff's evidence as to how the accident happened and how it
arose from the sole negligence of the insured. Any other finding would suggest
that I must speculatively engage in an assessment of evidence-divorced "Ifs"
and "what ifs" which should, in my view, take no tenancy in my mind as I will
then be clearly self-misdirecting against the only evidence before me.
5.3 That said I am comfortable with having to order that the defendant should
be 100 percent liable for the plaintiffs proven damages.
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5.4 The question of general damages having to, as per precedence, regretfully
be postponed on account of the defendant not having taken a stance on the
seriousness of the plaintiffs injuries, all that I must, in these proceedings do, is
to determine loss of earnings and the section 17(4 )(a) undertaking issue.
QUANTUM
5.5 Dr Mphele Tladi, an orthopedic surgeon's evidence was that the plaintiff
sustained a pelvic fracture, a bladder injury and a rectum injury and further that
he presented with sequelae of pain, constant pelvic pain and extensive scars.
5.6 The urologist, Dr Puleng Masegela, confirmed the pelvic fracture and
bladder injury and testified further about the sequelae of pain on urination,
termed micturition, erectile dysfunction, early ejaculation, pelvic pain during
coitus and inability to drive and walk for long.
5. 7 Dr Sadiki, a neurosurgeon's evidence was that additional to the injuries
identified by the orthopedic surgeon, the plaintiff suffered a head injury with
consequent neurocognitive and neuro-physical disorders.
5.8 The clinical psychologist, Lebogang Selahle testified that the plaintiff had
sustained a mild traumatic brain injury which left him with significant
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neurocognitive deficiencies, fine motor dysfunctions all of which led to severe
functional limitations.
5.9 An occupational therapist, Dr N J Mabote, testified that the plaintiff was
found to be unable to lift heavy items and is virtually incapable of tasks which
are germane to his previous work as a water truck driver, tasks like prolonged
sitting, prolonged standing and lifting heavy objects. This witness further opined
that given the injuries and sequelae suffered by the plaintiff, forced ealy
retirement was almost a certainty.
5.10 Dr Lowane Mayayise, an industrial psychologist testified about his
observations and expert opinion as follows:
5.10.1 That the plaintiff earned a monthly income of R20 643.59 as a water tank
driver.
5.10.2 Following the accident the plaintiff could no longer work as a water truck
driver proper hence he was accommodated in lighter duty menial tasks by the
municipality.
5.10.3 The injuries sustained in the accident have diminished the plaintiffs
physical, physiological, cognitive and neuropsychological functioning such that
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as he ages he will be rendered completely incapable of maintaining any kind of
employment.
5.11 This expert recommended a higher-than-normal contingency to be
considered in determining the plaintiff's loss of earnings.
5.12 Informed by the industrial psychologist's report, Robert Koch, the actuarial
scientist computed a total loss of R1 392 136.00 having factored in
contingencies 10 percent overall for past loss and 15 percent to 45 percent for
future loss. Considering that normal contingencies are generally 5% for past
loss and 15% for future loss and 25% in general for children, I have no problem
with the contingencies employed by the actuary as they are, as suggested by
the industrial psychologist, significantly higher than normal.
[6] The proper approach in assessing loss of earnings remains, for this court, as was
stated in Southern Insurance Association v Bailie v NO 1984(1) SA 98(A) at 112E-
114Fwhere 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
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can do is to make an estimate, which is often a ve,y rough estimate, of
the present value of the loss ... "
[7] In Hersman v Shapiro and Co 1926 TPD at 379 it was held as follows:
"Moneta,y damage having been suffered, it is necessa,y for the court to
assess the amount and make the best use it can of the evidence before
it. There are cases where the assessment by the court is little more than
an estimate; but even so, if is certain that pecunia,y damage has been
suffered, the court is bound to award damages ."
[8] In my view the expert evidence which was led before me is solid, informed and
unassailable These experts represent, so far as this court is concerned, present day
soothsayers and oracles and provide a very useful service to the court in its
determination of loss of earnings. To needlessly compute outside their evidence
where their evidence has not been gainsaid by any opposing view and where it cannot
be faulted would, in my view, be uncalled for.
[9] The summary of expert evidence led before me above, which evidence I have no
reason nor inclination to deviate from is, in my view, sufficient determinant of the
quantum opined on loss of earnings. Given the well-documented sequalae of the
injuries suffered by the plaintiff more so pelvic fracture, head injury and bladder
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complications and persistent pain associated therewith which debilitates the plaintiff
from doing work of any significance amidst the high unemployment rate where a
virtually unemployable plaintiff is most unlikely to get any job going forward, I am
persuaded that the computations recommended by the actuary are reasonable and
fair.
FUTURE MEDICAL CARE
[1 0] I am inclined to grant an order regarding the future medical care of the plaintiff
regard being had to the following considerations:
10.1 The cumulative evidence of the expert witnesses, especially the
orthopedic surgeon, the clinical psychologist, the urologist and the
neurosurgeon is indicative of the plaintiff going to need medical care in the
future.
10.2 In particular, the plaintiff will need pain management medication to deal
with headaches, constant pelvic pain, psychotherapeutic treatment and daily
micturition pain.
[11] The result of all the above is that I make the following order:
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[11.1] The defendant shall be liable for 100 percent of the plaintiffs proven
damages.
[11.2] The defendant shall pay an amount R 1 392 136.00(ONE MILLION
THREE HUNDRED NINETY-TWO THOUSAND AND ONE HUNDRED AND
THIRTY-SIX RANDS ONLY) to the plaintiff as loss of earnings.
[11.3] The amount stated in 11 .2 supra shall, within 180 days of this order, be
paid by direct transfer into the following trust account which shall be nominated
by the plaintiff's attorneys of record within 14 days of this order.
[11.4] The defendant shall pay the plaintiffs taxed or agreed to party and party
costs on a high court scale within 30 days of taxation or agreement which costs
shall include the costs attendant to securing expert reports and the costs of
counsel on scale B .
[11.5] Should the defendant fail to pay the capital amount and/or the taxed costs
timeously, the plaintiff shall be entitled to recover interest thereon on the
prescribed rate of interest from the date of mora to date of final payment.
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[11.6] The defendant is to provide an undertaking to the plaintiff in terms of
section 17(4 )(a) of the Road Accident Fund, 56 of 1996, for the costs of the future
accommodation in a hospital or nursing home treatment of or rendering of a
service to the plaintiff or supplying of goods to him arising out of the injuries he
sustained in a motor vehicle accident on 29 August 2020, after such costs have
been incurred and upon proof thereof.
[11.7] The issue of general damages is postponed sine die.
MS MONENE
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
Heard on
Judgment delivered on
For the Plaintiff
For the Defendant
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APPEARANCES
26 June 2024
05 November 2024
: Adv A M Mametse
: Instructed by P E Mashola & Co Inc
: Tel: -015 297 5921
: Email: pemashole.inc@gmail.com
: No appearance