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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1) REPORTABLE: ;¥E§-/ NO
(2) OF INTEREST TO THE JUDGES: ;¥E§-/ NO
(3) REVISED.
s;gnatu,e ..... ~ '.':" ..
Date: 08 November 2024
In the matter between:
MASENYA WILLIAM ATTI
And
ROAD ACCIDENT FUND.
JUDGMENT
CASE NO:3098/2022
PLAINTIFF
DEFENDANT
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MONENE AJ
[1] The plaintiff, a 29-year-old unemployed man , instituted action proceedings against
the defendant for damages arising from a motor vehicle accident which occurred on
11 March 2021. The plaintiff was a passenger in a motor vehicle at the time of the
accident.
[2] The defendant who , as is now custom, failed to defend the action, formally
conceded merits on 10 October 2023 where it admitted 100 percent liability for the
plaintiff's proven damages . The seriousness of the plaintiffs injuries having not been
conceded by the defendant and thus ousting this court's jurisdiction on general
damages, what remains to be determined is the plaintiff's loss of earnings.
[3] To prosecute his undefended claim for loss of earnings the plaintiff sought this
court's leave to invoke uniform rule 38(2) and thus proceed to lead evidence under
cover of affidavit. Leave was granted as sought by this court.
[4] The plaintiff then adduced the following uncontested evidence in brief:
(4.1] Regarding the injuries suffered by the plaintiff, Dr Thabo Sefatsa, an Orthopaedic
surgeon, gave evidence had a left upper limb laceration. The sequelae thereof were
a painful left elbow and a deformed left hand.
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(4.2] Pale Setobane, an occupational therapist, testified that she observed the plaintiff
to have a 23-centimeter scar on the elbow joint and restricted left arm function. This
witness noted further that the plaintiff had a grade 9 level of education and was at the
time of the accident unemployed. Noting that the plaintiff had earlier done some work
as a general worker on a part time basis, it was this expert's testimony that the plaintiff
is now unable to cope with tasks required off a general worker, tasks such as
prolonged carrying of objects. It was further opined by this expert that owing to the
physical deficiencies flowing from the accident the plaintiff will until retirement find it
very difficult to get employment in the open labour market.
(4.3] The industrial psychologist, Dr Zaheerah Fakir's evidence elicited the following:
4.3.1 The plaintiff would have reached a career ceiling at 45 years of age.
4.3.2 But for the accident the plaintiff would have been able to secure employment.
4.3.3 Had the accident not occurred the plaintiff would have earned up to the upper
quartile of unskilled labourers.
4.3.4 The plaintiff would, but for the accident, have been employed until normal
retirement age.
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4.3.5 The plaintiff is post-morbid most unlikely to reach the upper quartile of unskilled
labourers that he was destined for prior the accident.
4.3.6 Because the plaintiff was unemployed at the time of the accident he had suffered
no past loss of earnings. However, the diminution in his earning capacity and
employment prospects qualify him, even if he was unemployed at the time of the
accident, to be compensated for future loss of income.
(4.4] Informed by the reports of the three experts whose evidence was reflected upon
above, ltai Karidza, an actuarial scientist, postulated a net future loss of earnings at
R 1 209 6278. 75 having factored contingencies at 15 percent for uninjured income and
35 percent for injured income.
[5] It is trite that the principle underlying our law on compensation in Road Accident
Fund matters is that the plaintiff who has been harmed by the negligence of an insured
driver must, as far possible, be placed by a compensation award given, in the position
such a plaintiff would have, but for the injuries suffered, been. Trite as that principle
is, I cannot resist the temptation to, in that regard, defer to the time-tested counsel of
Rumpff J in Dippenaar v Shiel Insurance Co Ltd 1979(2) 904(A), to which I was
referred by counsel for the plaintiff, which went this way :
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"In our law, under the /ex Aquilia, the defendant must make good the difference
between the value of the plaintiff's estate after the commission of the delict and the
value it would have had if the delict had not been committed. The capacity to earn
money is considered to be part of a person's estate and the loss or impairment of that
capacity constitutes a loss, if such loss diminishes the estate."
[6] In so far as this court is concerned, the approach in assessing loss of earnings can
be put no better than it was stated in Southern Insurance Association v Bailie v
NO 1984(1) SA 98(A) at 112E-114F 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."
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[7] This court is not inclined to deviate from the uncontested expert evidence tendered
before it, more so the actuarial computations. To so deviate I would need something
better or a counterview or at least a reasoned view that the expert evidence led is
irrational or otherwise not to believed for another reason. All that is lacking in casu. I
thus cannot fault any of the experts in casu in any manner. In fact, I find the actuary's
computations and contingency deductions of 15% and 35% to be fair and reasonable.
More compelling to this court is the following paragraph from the industrial
psychologist's report, on which the actuarial scientist expressly relied in his
computations:
"The writer considers that as Mr Masenya is still young and would in al/ likelihood
attempt to secure work, most likely in the informal capacity. It is however noted that
he would not cope with fulltime position and would most likely take an intermittent
work that allows his rest in between. He is also highly likely to experience extended
periods of unemployment. In this capacity he is unlikely to earn beyond the lower
quartile of the unskilled informal category by the time he reaches age 45 years.
Current scales for unskilled employees in the non-corporate sector are: R26 000-
R47 000-R104 000 per annum (Quantum Yearbook,2023). He will thus suffer a loss
of earnings comparable to his pre-accident earning potential for which he should be
compensated."
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[8] In his heads of argument counsel for the plaintiff rather generously proposed a
change of contingencies to 20 percent premorbid future loss and 35 percent post
morbid future loss resulting in his submission of an amount slightly lesser than the
one computed by the actuary at R1 115 998.30.
[9] On the other hand, the plaintiffs particulars of claim put a million rands as the
amount claimed for loss of earnings. Them having not been amended , I am
constrained by the principle that parties are bound by their pleadings to the amount in
the particulars of claim, that is, my view that the higher amount postulated by the
actuary is well reasoned and fair notwithstanding.
(1 O] According to the orthopedic surgeon's expert evidence the plaintiff will going
forward need pain relief, rehabilitative treatment on his left arm and physiotherapy.
That alone, in my view, militates for an order relating to an undertaking for future
medical care if only to ensure that going forward the plaintiffs medical needs, as they
flow from the injuries he suffered in the road accident in casu, are insured.
(11] Premised on all the above, I make the following order:
(11.1] The defendant shall be liable 100 percent for damages suffered by the
plaintiff arising from the motor vehicle accident of 11 March 2021
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[11.2] The defendant shall pay an amount R 1 000 000.00(ONE MILLION
RANDS ONLY) to the plaintiff in respect of loss of earnings.
[11.3] The said amount shall within 180 days of this order being granted be paid
by direct transfer into a trust account nominated by the plaintiff's attorneys of
record within 14 days of this order.
[11.4] 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
[11.5] Should the defendant fail to pay the amount in 11 .2 above within the 180
days and/or the agreed to or taxed costs within 30 days; 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.
[11.6] The defendant is ordered to, within 14 days of this order, furnish the
plaintiff with an undertaking in terms of section 17(4 )(a) of the Road Accident
Fund Act in respect of which all future medical expenses of the plaintiff arising
from the injuries and sequalae of the accident of 11 March 2021 shall upon proof
be paid by the defendant.
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[11.7] The issue of general damages is postponed sine die.
MALOSE S 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
: 01 July 2024
: 08 November 2024
: Adv. M C Netshiendeulu
: Instructed by N C Thobejane Attorneys
: Tel: -015 065 0134
: Email: admin@thobe janeattorneys.co.za
: No appearance