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2024
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[2024] ZAGPPHC 1001
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Nkosi v Road Accident Fund (31752/2022) [2024] ZAGPPHC 1001 (3 October 2024)
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG HIGH COURT
DIVISION, PRETORIA
Case no: 31752
/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE
03 OCTOBER 2024
SIGNATURE
In the matter between:
ZANDILE JULENDA
NKOSI
Plaintiff
And
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
MAKHOBA, J
[1]
The plaintiff instituted an action against the defendant for damages
suffered as a result of injuries
sustained in a motor vehicle
accident that occurred on 1 February 2019.
[2]
At the time of the accident the plaintiff
was 39 years old. Merits have been conceded 100% in favour
of the
plaintiff.
[3]
The remaining issue before court is general damages and loss of
earnings. According to counsel
for the defendant which is not in
dispute. On 2 August 2024 Mabesele J ordered that the parties should
engage in settlement.
[4]
On 30 August 2024 the parties appeared before me and since counsel
for the defendant had not yet
filed her heads, I asked that she must
do so which she did and filed her heads on 5 August 2024. Both
parties addressed the court.
[5]
The plaintiff was admitted in hospital for 3 days namely from 10
February 2019 to 13 February
2019.
[6]
For general damages the plaintiff claims an amount of R 2 800 000.00
and for loss of
income R 7 688 600.00.
[7]
According to the orthopaedic surgeon, the plaintiff sustained the
following injuries:
7.1
Laceration in the head
7.2
Back laceration
7.3
Thoracolumber injury with paraparesis
7.4
Right thigh abrasion
7.5
Right knee bruise
7.6
Hospital X-rays showed no fracture
[8]
In the forensic Accounting Report
filed on CaseLines (14 - 315) by the plaintiff it is stated
that at
the time of the accident the plaintiff was self-employed earning R
70 000.00 per month. She was also a hawker earning
R 4 000.00
per month.
[9]
After the accident she did not return to her work due to domestic
issues between her husband (business
partner) and herself and
eventually she left the business to her husband.
[10]
After leaving the business with her husband she was paid a once off
payment of R 121 000.00.
[11]
Currently she is a hawker and makes a profit of R 1 500.00 per
month.
[12]
In my view the plaintiff did not attach in her Forensic Audited
Report any tangible proof of what she was
earning before and after
the accident. There are no bank statement of salary advice.
[13]
It is trite that the onus rests on the plaintiff to prove his case on
balance of probabilities see
Pillay v Krishna,
1946 SA 946.
Thus, the duty is on the plaintiff to produce evidence that because
of the injury, she has suffered loss of income.
[14]
I am called upon to perform the delicate judicial duty in that I must
decide what is the reasonable amount
the plaintiff would have earned
but for the injuries and the consequent disability.
[15]
The locus classicus as to the value of actual expert opinion in
assessing damages is
Southern Insurance Association Ltd v Bailey
NO
1984(1) SA 98(A) where Nicholas JA said the following:
“
Where
the method of actuarial computation is adopted in assessing damages
for loss of earnings capacity, it does not mean that the
trial Judge
is “tied down” by inexorable actuarial calculations. He
has ‘a large discretion to award what is
considers right’.
One of the elements in exercising that discretion is the making of a
discount for ‘contingencies’
or differently put the
‘vicissitudes’ of life’. These includes such
matters as the possibility that the plaintiff
may in the result have
less than a normal expectation of life; and that he may experience
periods of unemployment by reason of
incapacity due to illness or
accident, or to labor unrest or general economic conditions. The
amount of any discount may vary depending
upon the circumstances of
the case.”
[16]
In the matter of
De Kock v Road Accident Fund,
Case no.
2237/2013 reported on 22 April 2015 in the High Court of South Africa
(Gauteng Division, Pretoria) the Court once again
confirmed the
approach to be taken with the calculation of loss stated in paragraph
22 follows:
“
[22]
In approaching claims of this nature, the courts have always had open
to it two possible approaches, namely;
22.1
either that the Judge makes a round estimate of an amount which seems
to him to be fair and reasonable. That process is entirely
a matter
of guesswork – a blind plunge into the unknown;
22.2
that the Judge tries to make an assessment by way of mathematical
calculations on the basis assumptions resting on the evidence.
The
validity of this approach depends of course upon the soundness of the
assumption, and the may very from the strongly probable
to the
speculative.
[23]
It is manifest that either approach involves guesswork to a
greater or lesser extent. However, the court cannot for this
reason
adopt a non possumus attitude and make no award.”
[17]
I am of the view that the plaintiff failed to show on preponderance
of probabilities that she was self-employed
before and after the
accident. She failed to provide the following documents:
17.1
Salary slip or salary paid into a bank account. Deposit slips into
her banking account.
17.2
Tax document or IRP5 form.
17.3
Lump sum payment by her previous employer.
[18]
Due to her qualifications, I accept that the is a future loss of
income suffered by the plaintiff however
it is not properly
calculated by the actuary. Taking into account that the lumpsum was
not taken into consideration during the
calculations.
[19]
The court is satisfied that the plaintiff sustained serious injuries
and the amount claimed is in line with
the previous decided cases.
[20]
I am further of the view that the amounts claimed by the plaintiff in
respect of loss of incomes is excessive
and not justified and must be
reduced.
[21]
I make the following order:
21.1
Merits awarded 100% in favour of the plaintiff.
21.2
Section 17(4)(a) undertaking in terms of the
Road Accident Fund Act
56 of 1996
.
21.3
General damages: R 1 500 000.00 (one million five hundred
rand only).
21.4
Loss of income: R 2 000 000.00 (two million rand only).
21.5
Cost of suit at Scale “B”.
MAKHOBA
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
AND RESERVED JUDGMENT: 30 AUGUST 2024
JUDGMENT
HANDED DOWN ON: 03 OCTOBER 2024
Appearances
:
For
the Applicant: Ms B Tsabedze (instructed by) Marisana Mashedi
Incorporated
For
the Respondent: Ms L Nelufule (instructed by) State Attorney
Pretoria.