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[2024] ZAMPMBHC 56
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Nkosi v Road Accident Fund (1099/2022) [2024] ZAMPMBHC 56 (23 August 2024)
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
Case Number: 1099/2022
(1)
REPORTABLE: YES/
NO
(2) OF
INTEREST TO OTHERS JUDGES: YES/
NO
(3)
REVISED
SIGNATURE
DATE: 23/8/24
In the matter between:
LIMPHO
NESTERINA NKOSI
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
This judgment was handed down
electronically by circulation to the parties and/or parties’
representatives by email. The date
and time for hand-down is deemed
to be 23 August 2024.
JUDGMENT
COETZEE, AJ
INTRODUCTION
:
[1] This
case concerns a third-party claim instituted by the Plaintiff against
the Road Accident Fund
("the Defendant") arising from
injuries sustained in a motor vehicle collision on 3 March 2021, just
one day before the
Plaintiff's 24
th
birthday. At the
time of the accident, the Plaintiff was a student at Mapulaneng
College, pursuing a certificate in Public
Management. She is
currently 27 years old and unemployed. The Defendant has
previously conceded liability and agreed
to compensate the Plaintiff
for 100% of her proven or agreed damages. The current
proceedings before this Court are focused
solely on the determination
of the quantum of damages. The Plaintiff has presented testimony from
six expert witnesses, while the
Defendant has closed its case without
presenting any witnesses.
[2] The
dispute between the parties concerns the Plaintiff’s claims for
past and future loss
of earnings or earning capacity, as well as the
appropriate amount for general damages. The Plaintiff has formally
withdrawn the
claim for past medical expenses due to the lack of
supporting vouchers. The Defendant has agreed to provide a statutory
undertaking
under
Section 17(4)
of the
Road Accident Fund Act 56 of
1996
, as amended, and has acknowledged the seriousness of the
Plaintiff’s injury.
[3]
During a pre-trial conference on the 24
th
of November
2023, the Defendant admitted that the Plaintiff had been admitted to
the Matikwana hospital, “as per the hospital
records at hand”.
However, these hospital records were neither submitted into
evidence nor made available to the court.
Additionally, in the
same pre-trial conference, the Defendant admitted that the Plaintiff
sustained a soft tissue injury
to the left knee and fractures to the
left tibia and fibula, “as documented on page 2 of the report
by Dr. A.I. Khan”,
an orthopaedic surgeon.
[4] At
the start of the trial the Plaintiff's counsel initially proposed to
present evidence by way
of affidavit but subsequently opted to call
all the experts appointed by the Plaintiff to testify in person.
This change
in strategy appeared to be both hasty and
unplanned, suggesting a lack of adequate preparation. Of
particular concern was
the sequence in which the experts were called
to testify. The general principle is for a party to call its
witnesses in any
order he or she deems appropriate. However,
the customary practice is for expert witnesses to be called after
witnesses of
fact, particularly when the experts are required to
provide opinions on matters established by those factual witnesses.
While
the conduct of the trial is primarily within the discretion of
the parties as they present their respective cases, this established
sequence ensures that expert testimony is properly grounded in the
factual evidence already before the court. Despite the
court's
repeated concerns regarding the order in which the experts were
called, Plaintiff chose to proceed without heeding the
caution.
[5] This
approach was particularly problematic because, although the Defendant
admitted the Plaintiff’s
injuries, it disputed the treatment,
the sequelae of the injuries, and all other material facts pertaining
to the quantum.
This resulted in no common cause facts between
the parties. Consequently, the Plaintiff bore the full burden
of proving every
aspect of the case.
[6] The
Court encountered significant challenges in this matter. Firstly,
neither the Plaintiff
nor any factual witnesses were called to
corroborate the expert opinions presented. Secondly, the
Plaintiff failed to produce
any documentary evidence to support the
basis on which the expert opinions were formed. The experts'
opinions were predicated
on documents that were not submitted to the
Court, on communications with individuals acquainted with the
Plaintiff who did not
testify, and on statements made by the
Plaintiff herself. It is noteworthy that the Plaintiff's
counsel did not seek to have
any of the hearsay evidence admitted
under Section 3(1)(c) of the Law of Evidence Amendment Act 45 of
1998, nor did the Defendant
object to the introduction of such
hearsay evidence. No explanation was provided for the absence
of testimony from these
individuals or the failure to present the
relevant documents to the Court. The only facts formally
admitted before the Court
were the injuries conceded by the Defendant
during the pre-trial conference. The Court is thus faced with the
challenging task
of discerning the credible evidence from the experts
from a considerable amount of irrelevant material, relying on the
experts'
independent examinations, assessments, and claimed
expertise.
[7] The
Plaintiff's expert witnesses were called to testify in the following
sequence: an Educational
Psychologist, a Clinical Psychologist, an
Industrial Psychologist, an Orthopedic Surgeon, an Occupational
Therapist, and an Actuary.
EXPERT
EVIDENCE
:
[8] The
Plaintiff's first witness, educational psychologist Ms. Tau,
confirmed her credentials and
provided a detailed analysis of the
Plaintiff’s educational history, cognitive functioning, and the
impact of the accident
on her academic and cognitive abilities. Ms.
Tau’s report included assessments of the Plaintiff’s
cognitive,
emotional, and motor functioning. She opined that
the Plaintiff's cognitive functioning, which was within the low
average
to average range prior to the accident, had deteriorated to
below average post-accident. She further suggested that, but
for the accident, the Plaintiff would have had the potential to
attain an N6 qualification. She recommended that the Plaintiff
might only achieve an N5 qualification post-accident and should
consider an alternative career path due to her physical challenges.
[9]
During cross-examination, the Defendant scrutinized the foundation of
Ms. Tau’s conclusions,
particularly concerning the Plaintiff’s
pre-accident academic performance. It was disclosed that the
Plaintiff had
failed Grade 10 in 2012, a year marked by the loss of
both her parents, which had profoundly impacted her emotional
well-being.
Additionally, the Plaintiff’s National Senior
Certificate results, assumingly accurately reflected in Ms. Tau’s
report, demonstrated varying levels of achievement, suggesting
below-average performance. Despite this, Ms. Tau maintained
that the Plaintiff’s pre-accident cognitive potential was
average, relying on the educational history provided by the Plaintiff
and the absence of documented learning difficulties. However,
Ms. Tau conceded that the Plaintiff’s performance in
key
subjects was below average prior to the accident and acknowledged
that therapy could potentially improve the Plaintiff’s
emotional challenges, though not entirely.
[10] The second
witness for the Plaintiff, neuropsychologist Mr. Metse M. Mphelo,
confirmed his assessment of
the Plaintiff, which included an
evaluation of the accident's impact on her emotional, psychological,
cognitive, and mental functioning.
His assessment was based on an
interview, clinical observations, and medical records from Matikwani
Hospital and Mapulaneng Hospital,
though no other medico-legal
reports were available to him. Mr. Mphelo testified that the
Plaintiff was enrolled in an N5
Public Management program but could
not complete it due to the accident, though this assertion lacked
documentary support. His
testimony regarding the Plaintiff’s
loss of consciousness and subsequent recovery was similarly based on
her own account,
without corroborating evidence. Mr. Mphelo deferred
opinions on physical injuries to an orthopedic surgeon and persistent
headaches
to a neurologist. His assessment results indicated
that the Plaintiff demonstrated average abilities in some cognitive
tests
but performed below average in memory, attention span, and
concentration tests. He recommended psychiatric evaluation and
long-term
psychotherapy.
[11] During
cross-examination, Mr. Mphelo confirmed that his assessment of the
Plaintiff’s injuries,
pre-morbid functioning, post-accident
complaints, cognitive challenges, and emotional and behavioral
changes was based solely on
the Plaintiff's self-reporting. He
acknowledged the lack of pre-accident data, which prevented him from
making any definitive conclusions
about the Plaintiff’s
neurocognitive condition prior to the accident.
[12] The Industrial
Psychologist, Ms. Moipone Kheswa, testified that her report was based
on an interview with
the Plaintiff who provided her with amongst
other things information about her educational and employment
history, the treatment
she received and her current complaints.
Her report was also based on medical reports, labor market analysis,
and collateral
information from the Plaintiff’s cousin, Mr.
Vhonani Mokgane, and a lecturer, Mr. Khoza. Once again, these alleged
facts
were not proved. None of this information was confirmed
under oath, rendering the foundation of her opinion questionable.
[13] Ms. Kheswa
confirmed the following information regarding the Plaintiff’s
academic progress at Ehlazeni
TVET College: From January to
June 2019, while pursuing an N4 in Public Management, the Plaintiff
failed two modules and
passed two others. From June to December
2019, she successfully completed the two remaining modules. In the
first semester
of 2020, while studying towards an N5 in Public
Management, academic activities were suspended due to the COVID-19
pandemic. From
June to December 2020, shortly before the collision,
the Plaintiff failed all her N5 Public Management modules and had
already
applied to switch to a course in Hospitality and Tourism due
to the discontinuation of her previous program. Ms. Kheswa
concluded
that the Plaintiff had not suffered any past loss of income
but was unlikely to reach her pre-accident earning potential due to
the impact of the accident on her cognitive abilities.
[14] Dr. Khan
provided testimony regarding the Plaintiff’s physical injuries,
confirming a comminuted fracture
of the left tibia shaft, which
included a large posterior butterfly fragment and fracture
displacement. Although the fractures
have healed, he observed
poor bone healing, leading to ongoing pain and restricted movement.
Dr. Khan opined that the Plaintiff's
chronic pain and reliance
on support for walking have significantly hindered her ability to
pursue her studies. While he
acknowledged that she could
continue her education, he noted that her future work capacity would
be limited to light duties, with
potential difficulties in the open
labor market. In his RAF4 report, Dr. Khan confirmed that the
Plaintiff has not yet reached
maximum medical improvement. He
recommended further medical treatment to enhance her condition and
assigned a whole person impairment
rating of 10%.
[15] Occupational
Therapist Mr. Mashaba assessed the Plaintiff’s functional
limitations and concluded that
her left lower limb injury has
significantly impaired her ability to perform physical tasks and
continue her studies. Due to the
severity of her mobility
restrictions, he determined that she would be unable to travel to
school, particularly using public transportation.
Mr. Mashaba further
noted that individuals living with chronic pain are more susceptible
to psychological distress, including anxiety
and depression. He
opined that the Plaintiff's career options would be limited to
sedentary work, as she would be unable to engage
in physically
demanding occupations.
DISCUSSION
:
[16] In the matter
of
Mathebula v RAF
(05967/05)
[2006] ZAGPHC 261
(8 November
2006) at par. 13 the following was said:
“
An expert
is not entitled, any more than any other witness, to give hearsay
evidence as to any fact, and all facts on which the
expert witness
relies must ordinarily be established during the trial, except those
facts which the expert draws as a conclusion
by reason of his or her
expertise from other facts which have been admitted by the other
party or established by admissible evidence.”
[17] The Court,
after careful consideration of the evidence presented, finds that the
conclusions reached by the
experts were derived from a combination of
unsubstantiated hearsay and collateral evidence rather than from
proven facts. This
conclusion is supported by the following points:
a)
The Plaintiff’s educational
performance prior to the accident was below average, as evidenced by
her failure in Grade 10,
although it is acknowledged that this
occurred during the year she lost both parents and was struggling
emotionally. Her
National Senior Certificate results, along
with her subsequent academic performance at college, further reflect
inconsistency in
her academic achievements. This pattern suggests
that, even in the absence of the accident, the Plaintiff may have
encountered
significant challenges in completing an N6 qualification.
Moreover, she would likely have had to change her career path
regardless,
due to the discontinuation of the course she was
pursuing. Ms. Tau’s opinion that the Plaintiff might have
attained
an N6 qualification but for the accident fails to adequately
consider the Plaintiff’s pre-accident academic difficulties,
rendering her conclusions speculative.
b)
Ms. Tau’s assessment was heavily
reliant on the Plaintiff’s self-reported academic performance
and cognitive potential.
During cross-examination, it was revealed
that the Plaintiff’s academic achievements were below average,
which casts doubt
on Ms. Tau’s assertion that the Plaintiff's
cognitive functioning was average before the accident. This indicates
that Ms.
Tau’s opinions may have been based on incomplete or
inaccurate data provided by the Plaintiff, rather than independently
verified facts.
c)
Mr. Mphelo's assessment was primarily based
on the Plaintiff's self-reports and limited medical records, without
corroborating evidence
from other medico-legal reports. His
conclusions regarding the Plaintiff's inability to complete her
studies due to the accident
lacked documentary support and were
therefore reliant solely on the Plaintiff's account, rendering them
speculative. He further
conceded that his findings concerning the
Plaintiff's pre-morbid functioning, post-academic complaints, and
emotional and behavioral
changes were entirely based on the
Plaintiff's statements.
d)
Ms. Kheswa’s report was based on
information provided by the Plaintiff and additional collateral
sources such as the Plaintiff’s
cousin and a lecturer. This
collateral information was not confirmed under oath, leading to
questions about its reliability. Furthermore,
the information from
these sources was not corroborated by independent evidence,
undermining the validity of Ms. Kheswa’s
conclusions about the
Plaintiff’s potential earnings and academic progress.
e)
Both Mr. Mphelo and Ms. Tau acknowledged
the absence of pre-accident data, which limits the ability to make
definitive conclusions
about the Plaintiff’s neurocognitive
condition and academic potential before the accident. This lack of
baseline data means
that their opinions about the impact of the
accident on the Plaintiff’s prospects are speculative.
[18] The experts'
reliance on speculative conclusions cast doubt on the reliability of
their assessments regarding
the Plaintiff’s damages and future
earning capacity.
LOSS
OF EARNINGS
:
[19] The Plaintiff
has submitted to the Court an actuarial calculation, based on the
report of Ms. Kheswa, which
estimates an amount of R40,284.00 for
past loss of earnings. However, it is pertinent to note that, at the
time of the collision,
the Plaintiff was still pursuing her studies
and was likely to alter her career trajectory irrespective of the
collision.
Consequently, under normal circumstances, the
Plaintiff would have commenced employment in January 2024 or January
2025, regardless
of the collision. Furthermore, Ms. Kheswa’s
report confirms that the Plaintiff has not sustained any past loss of
earnings.
Therefore, no amount is awarded for past medical
expenses.
[20] The projected
uninjured future income was estimated to be R13 502 500.00.
The calculation
provides that the Plaintiff would have obtained an N6
qualification and started earning R94 773.00 per year (based on
March
2023 rates) from January 2024 until June 2025. After a
gap, her income would resume in October 2025 at R282 000.00 per
year (the lower quartile of Patterson B4), followed by steady
compound real increases to R982 000.00 per year by age 45 (the
upper quartile of Patterson C5), with inflationary adjustments
continuing until age 65.
[25] The projected
earnings in this calculation assumed that the Plaintiff would have
obtained an N6 qualification.
In her report, Ms. Tau observed
that the Plaintiff's potential earnings could have progressed in
accordance with the educational
level she might have achieved and the
availability of employment at the relevant time. Ms. Tau
suggested that the Plaintiff
had the potential to complete her N6
qualification; however, this potential should not be mistaken for a
certainty. The calculation
assumes an ideal scenario where the
Plaintiff would have successfully obtained this qualification,
despite her prior academic challenges,
including her failure to pass
all N5 modules in the six months preceding the collision.
[26] While there is
considerable uncertainty regarding whether the Plaintiff would have
completed her N6 qualification
under pre-accident conditions, this
uncertainty persists in the post-accident scenario. The Plaintiff's
symptoms related to pain
and functional impairment may, with
appropriate treatment, improve to a degree that would enable her to
resume her studies, albeit
potentially in a reduced capacity and
within a different career path. It is further acknowledged,
based on expert opinion,
that in the post-accident scenario, the
Plaintiff will likely be limited to sedentary work.
[27] In assessing
damages the following was stated in the leading case of
Southern
Insurance Association Ltd v Bailey
1984 1 SA 98
(A) 113H-114E:
“
Any enquiry
into damages for loss of earning capacity is of its nature
speculative… 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 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. It is manifest that either
approach involves
guesswork to a greater or lesser extent. But the Court cannot
for this reason adopt a non possumus attitude
and make no award.”
[28] Where the
method of actuarial computation is adopted, it does not mean that the
trial Judge is "tied
down by inexorable actuarial calculations".
He or she has "a large discretion to award what he
considers right".
One of the elements in exercising that
discretion is the making of a discount for "contingencies"
or the "vicissitudes
of life". These include 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 labour unrest or general economic
conditions. The amount of any discount may vary, depending upon
the circumstances of
the case. (see
Southern Insurance Association
Ltd
supra 116G-H).
[29] The Plaintiff
contended a direct loss of income and a loss of earning capacity,
totaling R10,510,944.00.
Conversely, the Defendant contended that the
Plaintiff’s loss of earnings should be addressed by applying a
higher post-accident
contingency deduction to both the same pre- and
post-accident earnings. The Defendant proposed a contingency
differential of 7.5%
amounting to R933,843.60.
[30] The court
recognizes that the Plaintiff has experienced and will continue to
experience a future loss of
earning capacity, the precise
quantification of which is challenging due to the nature of the
evidence presented. Considering
the circumstances and the
court's evaluation of what is just, it is deemed appropriate to apply
a 25% contingency differential
to the Plaintiff’s projected
pre-collision earnings. This results in an amount of
R3 375 625.00 (R13 502 500.00
multiplied by 25
%). The same result is achieved by making the following
calculation:
Uninjured future loss:
R13 502 500.00
Minus 25 % contingency
deduction:
R
3 375 625.00
Total uninjured future
earnings:
R
10 126 875.00
Injured future
earnings:
R13 502 500.00
Minus 50 % contingency
deduction:
R
6 751 250.00
Total injured
earnings:
R
6 751 250.00
Total: R10 126 875.00
- R6 751 250.00 = R3 375 625.00
GENERAL
DAMAGES
:
[31] I now turn to
the general damages suffered by the Plaintiff. The Plaintiff
has suggested an award of
R600 000.00, while the Defendant has
recommended an amount of R400 000. The court has
considered the Plaintiff’s
admitted injuries, future treatment,
prognosis, and the expert assessments.
[32]
In the matter of
Hluthwa
v Road Accident Fund
2017
(7A4) QOD 60 (GJ) 2017 (7A4) QOD p 60, the injured person, a
23-year-old male cleaner, sustained soft-tissue injuries
of the axial
skeleton; injury to the left knee; fracture of the
right
tibia
and
fibula
.
The court accepted the evidence of a neurosurgeon who testified
on behalf of the plaintiff to the effect that he suffered
a severe
brain injury. The neurosurgeon attributed the plaintiff's
significant loss of cognitive functions such as deterioration
of
memory and concentration as well as personality or behavioral changes
to an injury to the
frontal
lobes
or their deeper connections. The court concluded that, on
consideration of all the evidence, it is clear that
the plaintiff
suffered pain, discomfort and loss of amenities immediately after the
accident and in the months following the accident.
He continued
to suffer discomfort two years after the accident. Post-accident,
there is no doubt that the plaintiff's
general enjoyment of life has
been diminished by the accident. The court awarded an inflation
adjusted amount of R663 000.00
for general damages in 2024
terms. However, the case is different from the current one
because the Plaintiff did not sustain
a head injury; instead, the
injuries are primarily orthopaedic.
[33]
In the matter of
Kubayi
v Road Accident Fund
2013
(6E4) QOD 27 (GNP) 2013 (6E4) QOD p27, the injured person an adult
male (age not supplied) sustained an open fracture
of
the
distal
tibia
and
fibula
.
As a result of the external fixation, he developed an infection
in the area. His physical impairment includes: pain
in his left
ankle exacerbated by prolonged static positions or repetitive
movement, strenuous rigorous activity as well as hot
weather; loss of
functional range movement in the left ankle; swelling of the left
ankle and muscle
atrophy
of
the left foot; leg length discrepancy of approximately 1.5cm; scar on
the left leg, which partially conceals a healing
wound; decreased
rate of performance in walking and stair climbing. The court
awarded an inflation adjusted amount of R526 000.00
for general damages in 2024. This matter is distinguishable
from the present case, as the Plaintiff in the current matter
also
sustained a knee injury and is expected to require additional future
medical treatment..
[34] After reviewing
comparable legal cases, the court considers an award of R550 000.00
to be fair and reasonable.
ORDER:
[35] In the
premises, the court makes the following order:
1.
The Defendant shall make payment to the
Plaintiff of the amount of R3 925 625.00 (Three Million
Nine Hundred and Twenty-Five
Thousand Six Hundred and Twenty-Five
Rand in respect of loss of earnings and Five Hundred and Fifty
Thousand Rand in respect of
general damages).
2.
The Defendant shall furnish the Plaintiff
with an Undertaking to compensate her, in terms of
Section 17(4)(a)
of the
Road Accident Fund Act No 56 of 1996
, for payment of 100 % of
the costs of future accommodation of the Plaintiff in a hospital or
nursing home, or for the treatment
of, or rendering of service, or
for the supplying of goods or related expenses to the her, as
detailed in the medico-legal reports,
in respect of injuries
sustained by her in the motor vehicle collision, which occurred on 3
March 2021
.
3.
The Defendant shall make payment of the
Plaintiff’s taxed or agreed party and party costs of suit, as
agreed or taxed, in
the discretion of the Taxing Master, which costs
shall include the costs of the experts appointed by the Plaintiff and
the costs
of counsel on scale B.
L. COETZEE
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Appearances:
Counsel
for the Plaintiff:
Adv.
N. Mabena
Instructed
by:
TP
Sithole Ince
On
behalf of the Defendant:
Ms.
T. Malope
Instructed
by:
State
Attorney, Nelspruit
Heads
of argument submitted:
16
April 2024
Date
of judgment:
23
August 2024