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[2024] ZAMPMBHC 63
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Mokone v Road Accident Fund (2242/23) [2024] ZAMPMBHC 63 (6 September 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALNGA
DIVISION MBOMBELA
(MAIN
SEAT)
Case No: 2242/23
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE
: 06/09/2024
SIGNATURE
In
the matter between:
LUCY
FORTUNATE MOKONE
PLAINTIFF
And
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
MSIBI
AJ
INTRODUCTION
[1]
In this action the plaintiff an adult
female, residing at Casteel, Acornhoek, Mpumalanga Province;
sues the
defendant for injuries that she sustained from a motor vehicle
accident.
[2]
On 08 May 2020, the plaintiff was a passenger in a motor vehicle with
registration number J[...]
2[...] M[...] when the vehicle got
involved in a collision. The plaintiff is suing for loss of earning
capacity and general damages.
The merits were settled 100% in favour
of the plaintiff. The defendant has further agreed to furnish an
undertaking to the plaintiff
in terms of
section 17
(4) (a) of the
Road Accident Fund Act 54 of 1996
. The defendant made an offer in
respect of the plaintiff’s loss of income and general damages.
The offer was rejected by
the plaintiff, since the amounts were low.
[3]
The only issues for determination by this
court are therefore loss of income and general damages.
THE
DISPUTES
[4]
On 8 May 2020, the motor vehicle that the plaintiff was a passenger
in a motor vehicle with registration
numbers J[...] 2[...] M[...],
when another motor vehicle with registration numbers J[...] 3[...]
M[...] of the drove into the lane
of the vehicle in which the
plaintiff was travelling. As a result, the first motor vehicle
avoided a collision with the second
motor vehicle and overturned. At
the commencement of the trial, the parties agreed that the matter be
proceeded with based on the
reports submitted by the plaintiff, in
terms of rule 38(2). The court was also informed that the issue of
merits had been settled
100% in favour of the plaintiff. It was
also agreed that the defendant would furnish the plaintiff with an
undertaking in
respect of future accommodation, hospital and medical
expenses in terms of
section 17(4)(a)
of the
Road Accident Fund Act
56 of 1996
. Consequently, the only issue for determination in
this trial were the plaintiff’s claim for general damages and
also
past and future loss of earnings.
[5]
There was an application in terms of
Rule 38
(2) o the Uniform Rules
of Court to have the evidence of the plaintiff’s experts heard
on submission of affidavits. The application
was granted. The
defendant did not submit any expert evidence. The following expert
reports were relied on by the plaintiff:
-
Orthopaedic Surgeon
-
Neurosurgeon
-
Clinical Psychologist
-
Occupational Therapist
-
Industrial Psychologist
-
Actuary
PLAINTIFF’S
EXPERTS REPORTS
Orthopaedic Surgeon-
Dr Matekane
[6]
The orthopaedic surgeon examined the plaintiff and compiled a report
on 30 August 202. He deposed
to an affidavit confirming the contents
of his report.
[7]
In his report he noted that the plaintiff sustained soft tissue
injuries on the spine right leg,
facial laceration and soft tissue
injuries on the right wrist. He opines that the prognosis is fair,
the soft tissue injuries have
largely resolved even though she may
continue to experience chronic back pain, leg and wrist pain. The
expert noted a 3 cm scar
on her right leg. The plaintiff worked as a
cashier pre and post -accident. She reported having experienced some
limitations at
work caused by prolonged standing, carrying and
lifting of heavy objects. Her injuries may in future affect her
ability to compete
fairly in the open labour market; especially in
jobs that involve physical strain.
[8]
Her WPI is 3%, therefore she does not qualify for general damages
based on her orthopaedic injuries.
Neurosurgeon
–Dr Mkhonza
[10]
The plaintiff was assessed by the neurosurgeon who compiled a report
and deposed to an affidavit confirming
the contents of his report. He
considered the RAF 1 form and the hospital records. He
noted that the plaintiff sustained
a mild head injury and soft tissue
injuries on the face, left shoulder, wrist, right lower limb, and
concussion. She was
4 months pregnant at the time of the
accident. She had a normal delivery and the baby is alive. No future
neurosurgical operation
is anticipated regarding the mild head
injury. He opines that the plaintiff’s level of
concentration and memory has
been affected. He deferred this to a
clinical psychologist for neurocognitive assessment.
[11]
The plaintiff has never been involved in a motor vehicle accident
before. With regard to her educational
level, the plaintiff failed
her matric in 2018, she repeated grade 11. She is able to do her
house hold chores. Her risk of epilepsy
is the same as that of the
general population. As a result of the accident the plaintiff
complains of painful wrist, painful thoracic
spine and
amnesia/forgetfulness. Clinical examinations confirmed neurocognitive
deficits, which are a sequel of the mild traumatic
brain injury that
was sustained during the accident. The plaintiff did not lose
consciousness during the accident, however she
hit against the taxi
door.
[12]
Based on the serious injury assessment report the neurosurgeon
qualified the plaintiff for general damages
based on the narrative
test at WPI 13% for severe long term mental and severe behavioural
disturbance or disorder.
Clinical
Psychologist-- Dr Modiba
[13]
The plaintiff was assessed by the clinical psychologist, who compiled
a report and also deposed to an affidavit
confirming the contents of
his report. She considered the report of the orthopaedic surgeon and
the neurosurgeon and the conclusions
made therein.
[14]
He reordered that pre-morbid the plaintiff was functioning optimally,
she had no injuries or medical condition.
Post-morbid the plaintiff
has from neurocognitive deficit; namely mild verbal short term memory
deficit, mild attention deficit,
decline in intellectual functioning
level. She also suffers from mild depression and mild anxiety. She
suffers from personality
and behavioural changes; namely irritability
and withdrawal from other people. With regard to the above mentioned
post –
morbid conditions the expert recommends a psychotherapy
with clinical psychologist for about 10 months.
Occupational
Therapist—Dr Sagwati Sebapu
[15]
The plaintiff was assessed by the occupational therapist who then
compiled a report on 14 October 2021. She
also deposed to an
affidavit confirming the contents of her report.
[16]
The plaintiff’s highest standard of education is grade 11.
Pre-accident the plaintiff worked as a cashier
at a fast food outlet,
earning a salary of about R2900 00 to R3200 00 per month. Her job
involved travelling to and from work for
about 30 minutes. She worked
15 days in a month on shift basis. Her specific duties involved
taking of orders, receiving money
and cleaning counters. After the
accident she recuperated for a week and returned to work thereafter.
At the time of the report
she was still working as a cashier at
Debonairs Pizza restaurant. She was not on any kind of medication at
the time of assessment.
[17]
The physical demands of her work entailed occasional periods of
standing, bending and frequently handling
weights of about two
kilograms daily. Her work fell in the light sedentary category. She
returned to her work after recuperation.
She was able to lift weights
of about 10kg on a safe and dependable basis frequently. She reported
pain of bilateral wrists with
regard to 15 kg weight. It did not
appear that the plaintiff experienced pain with sitting. She was able
to squat, kneel, crouch
and crawl. The plaintiff was able to stand
for about 30 minutes during her assessment, she showed equal weight
bearing throughout
the activities. She however continued to
experience pain in her left wrist particularly during busy periods
and cold weather.
[18]
The plaintiff’s highest standard of education is grade 11. She
thereafter managed to obtain a security
certificate and a computer
literacy certificate. Due to her low level of education the
plaintiff would be expected in future
to continue to rely on her
physical aptitudes as an economic safety net. Her reduction in
physical capacity constitutes a significant
loss as it negatively
affects her prospective employment.
Industrial
Psychologist—Patricia Baloyi
[19]
The plaintiff was assessed by the industrial psychologist who
compiled a report and deposed to an affidavit
confirming the contents
of his report. The expert considered the medico legal reports of all
other experts and their opinions including
the plaintiff’s
history of employment.
[20]
Before the accident the plaintiff was a cashier. Her income fell
between the lower and the median quartile
of the suggested salary
scale of semiskilled workers in the non-corporate sector. She
would be expected to develop to the
upper quartile of semiskilled
workers in the non-corporate sector. Experts reported a reduction in
her physical psychological and
cognitive capacity. These factors are
expected to compromise her work performance, her capacity to work and
earn. Although she
has returned to her employment after the accident,
she currently does not qualify for a promotion. The expert opines
that the plaintiff
has suffered loss of income. Her post accident
income is averaged at R4 189 42 per month, which is manually
calculated at
R50 273 12 per annum. Her income falls between the
median and upper quartile of the suggested salary for unskilled
workers
in the non-corporate sector, which is R21 600 –R37 900-
R86 000 per year (Robert Koch, 2020).
[21]
The expert obtained collateral information from Ms Tebogo Malomane,
the plaintiff’s supervisor who confirmed her employment,
adding
that her chances of promotion have been reduced due to the injuries.
Actuary
–Munro
[22]
The plaintiff’s loss of income as postulated by the industrial
psychologist was postulated by the industrial
psychologist and
calculated by the actuary. The actuary deposed to an affidavit
confirming the contents of the report.
[23]
The actuary calculated the plaintiff’s loss of earnings was
calculated at R2 936 300 with
no contingencies applied.
SUBMISSIONS
[24]
It is submitted that as a result of the accident the plaintiff will
not be able to compete fairly in the
open labour market and that
career opportunities for her are slim considering the fact that she
has no a tertiary qualification.
The fact that she is currently
struggling in her current employed attest to her cognitive
limitations. She might need to be accommodated
by a sympathetic
employer. She might have to retire earlier than the normal age of
retirement. It is not in dispute that
she should be compensated
fairly applying just and reasonable contingencies.
[25]
It was argued on behalf of the defendant that higher than normal
contingencies should be applied. Despite her cognitive
and physical
limitations, the plaintiff is still employed by the same employee.
[26]
The onus rest on the plaintiff to prove on a balance of probabilities
that she has suffered loss of income and
earning capacity and the
extent of her loss. The only experts that filed reports are those
appointed by the plaintiff. From the
said reports the plaintiff
suffered mild cognitive limitations, neck and right arm injuries and
pecuniary loss. The plaintiff has
discharged the onus that rests on
her.
[27]
The plaintiff has obtained a security certificate and a computer
literacy certificate before the accident.
It is clear that her
computer literacy has benefited her in her current employment. Based
on her highest level of education, the
plaintiff would be expected in
future to continue to rely on her physical aptitudes and these
qualifications as an economic safety
net. Her reduction in physical
capacity constitutes a significant loss as it negatively affects her
prospective employment.
[28]
According to the Occupational Therapist the plaintiff will continue
to suffer on going pain and limitations.
According to the
neurosurgeon she has suffered a whole person impairment of 13%.
According to Dr Matekane, the Orthopaedic Surgeon
she has suffered 3%
whole person impairment. It is an undisputed fact that the plaintiff
has suffered loss of income.
CONTINGENCIES
[29]
It is trite that general contingencies cover a wide range of
considerations which vary from case to case.
Five percent and 15
percent for past and future loss of earnings, respectively, have
become accepted as ‘normal’ contingencies.
The usual
considerations include taxation, early death, employment, promotion
prospects, divorce etc. (Robert J Koch The Quantum
Yearbook 2015) The
actuary did not apply contingency deductions.
[30]
Contingency deductions are within the discretion of the court. In
arriving at the appropriate percentage of contingency
to be made, the
court is guided by the circumstances of this case as contained in the
expert’s reports.
[31]
In
Gwaxula
v Road Accident Fund
[1]
,
the court in paragraph 25 stated the following:
“
It is now
well-settled that contingencies, whether negative or positive, are an
important control mechanism to adjust the loss suffered
to the
circumstances of the individual case in order to achieve equity and
fairness to the parties. There is no hard and
fast rule
regarding contingency allowances.
Koch
in
The
Quantum
Yearbook
(
2011
)
at
104
said:
General contingencies
cover a wide range of considerations which may vary from case to case
and may include: taxation, early
death, saved travel costs,
loss of employment, promotion prospects, divorce, etc. There
are no fixed rules as regards general
contingencies.
There are also
unforeseen contingencies based on factors such as errors in the
estimation of future earnings and life expectancy,
loss of earnings
due to unemployment and sickness, retirement at an earlier age and
hazards of life. The list can never be
exhaustive.”
[32]
The plaintiff did not have a history of ailments or injury that could
have a negative effect on her employment
capacity before the accident
The normal contingency deduction of 5% will be applied on the
plaintiff’s pre-injury earnings.
A higher than normal
contingency of 30 % will be applied to her post injury earnings.
CAPITAL
VALUE OF LOSS OF INCOME
Pre-injury
loss
R11600
less 5 % = R106 0 20
Less
R62 900
less 5% = R59 755
Total
=R46 265
Post
injury loss
Future
uninjured earnings R3 964 700 less 30% = R2 378 820
Injured
earnings R1 077 100 less 30 % =
R753 970
Total
loss injured loss =
R1 698 190.00
Total
loss
= R 1 744 455.00
GENERAL
DAMAGES
[33] In
De Jongh v Du Pisani
2004 (12) All SA 565
(SCA) at 682
, the
court remarked as follows:
“
The court in
determining quantum for general damages must have regard to previous
comparable cases. The principle is that an award
will be fair if it
demonstrates consistency with previously decided cases of a similar
nature. In doing so, however, it must not
be overlooked that a court
is vested with a discretion which is to be exercised with due regard
to the peculiar facts of the matter
it is seized with.”
[34] In
Masemola
v Road Accident Fund
[2]
the neurosurgeon in that matter testified that the plaintiff had
sustained a head injury, bilateral shoulder injuries, and left
knee
injury. The court awarded the plaintiff R1.2 million for general
damages.
[35]
The plaintiff’s injuries in the present case are less severe
than the injuries in the
above mentioned case. An
amount of R400 000 00 is a fair and reasonable
compensation for her
general damages.
[36]
Consequently, the following order is made:
1.
The defendant is ordered to pay the following amounts R1 744 855
which is made
up of R1 744 455 for loss of earning capacity
and R400 000 for general damages.
2.
The defendant is ordered to pay the plaintiff’s medical costs
in the form of an undertaking.
3.
The defendant shall be liable for interest thereon, at the applicable
rate, fourteen
days from the date of judgment to the date of payment.
4.
The defendant is ordered to pay costs on a party and party scale.
S
MSIBI
ACTING
JUDGE OF THE HIGH COURT MBOMBELA (LOCAL SEAT)
Adv.
S. MBHALATI
For
plaintiff
Instructed
by Ngomana and Associates Attorneys: Mbombela
Adv.
G. P MOKOENA
For
defendant
Instructed
by the Office of the State Attorney: Mbombela
[1]
(09/41896)[2013]ZAGPJHC 240
[2]
(7336/2017) [2023] ZAGPPHC765 (2 July 2023)