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2024
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[2024] ZAMPMBHC 67
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Ngwenya v Road Accident Fund (696/2020) [2024] ZAMPMBHC 67 (16 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
Case
No: 696/2020
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES: No
(3)
REVISED: Yes
SIGNATURE
DATE:
16/09/2024
In
the matter between:
ELIZABETH
NOMBUSO NGWENYA
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
This
judgment was handed down electronically by circulation to the
parties/and or parties’ representatives. The date and time
of
hand-down is deemed to be 16 September 2024 at 10h00.
JUDGMENT
Ryneveldt
AJ
Introduction
[1]
This is a matter in which the Plaintiff filed a lawsuit against the
Defendant for losses incurred
as a direct result of an accident that
happened on 19 May 2018, while the Plaintiff was a passenger in a
motor vehicle as envisaged
by the Road Accident Fund Act 56 of 1996
(the Act).
[2]
Merits have been conceded in favour of Plaintiff, and a section 17(4)
undertaking of the Act as
amended has been tendered to the Plaintiff
for future medical and hospital expenses.
[3]
In its ruling on the severity of the Plaintiff’s injuries, the
Health Professional Council
(HPCSA) on 2 April 2024, concluded that
the Plaintiff’s injuries do not satisfy the whole person
impairment measures criterion
of Regulation 3(1)
(b)
(ii).
During the closing argument, the Plaintiff’s counsel stated
that the Plaintiff would accept the HPCSA’s decision
and would
not be pursuing the issue of General Damages any further.
[4]
The parties agreed that the matter before this Court would only deal
with past and future loss
of income-earning capacity and that the
evidence presented would only address this issue.
Trial
Evidence
[5]
The Defendant had not appointed any experts and/or expert reports and
consequently accepted that
the physiotherapy and actuary reports of
the Plaintiff be admitted as evidence in terms of Uniform Court Rule
38(2), section 34(2)
of the Civil Proceedings Evidence Act 25 of
1965, and
section 3
of the
Law of Evidence Amendment Act 45 of 1988
.
[6]
During the trial, the Plaintiff, the Plaintiff’s Occupational
Therapist, Orthopaedic Surgeon,
and Industrial Psychologist gave oral
evidence. The Defendant did not call any witnesses.
[7]
The Plaintiff testified during her examination in chief that she is a
57-year-old unemployed female,
with her highest qualifications being
a Bachelor in Education Honors degree. After 26 years of service, she
decided to leave the
teaching profession in 2016 to pursue her dream
of working for herself. She remained self-employed until the accident
occurred
in 2018, and due to the injuries sustained, she was not able
to continue her farming business for 2 months due to constant pain.
[8]
The Plaintiff additionally stated in her examination in chief that
she was admitted to Kiaat Hospital
on the day of the accident and
discharged the next day, 20 May 2018. After being discharged from the
hospital, she discovered that
her leg, back, shoulder, and left hand
were painful, so she returned to the same hospital the following day
after being discharged
and was referred to a physiotherapist. She had
physiotherapy every two weeks, but it did not alleviate or stop the
pain.
[9]
Before the accident, the Plaintiff testified (examination in chief)
that she had a garden, where
she planted produce for the market doing
most of the farming work herself, from which she generated a monthly
income of about R7
000,00. The Plaintiff further stated that she did
not issue any sale invoices and that all her sale transactions were
on cash-only
basis.
[10]
The Plaintiff further acknowledged that she had people helping her
with her farming business, but she was
unable to retain them
following the accident because she lacked the funds to pay them.
[11]
Under cross-examination, the Plaintiff conceded that the hospital
records submitted to the Defendant fully
set out the injuries she
sustained in the accident.
[12]
During the cross-examination, the Plaintiff provided additional
testimony, admitting that she occasionally
had to perform physical
labour in addition to her supervisory role in her farming business,
albeit with some pain, and she disputed
her own Occupational
Therapist’s findings that stated she could continue to function
as a supervisor in her own business.
[13]
Being questioned further, Plaintiff admitted that in fact, she had
documented her cash income however her
attorneys never requested
access to the books.
[14]
The Plaintiff’s Orthopaedic Surgeon, Dr. Oelofse, gave
evidence, in his examination in chief stating
that the Plaintiff’s
pathology was caused by trauma rather than aging in that thoracic
spine fractures are the most overlooked
fractures in orthopaedics.
According to him, the Plaintiff sustained a T4, T5, and T6
compression fracture, evidence he reiterated
during his
cross-examination.
[15]
When questioned by the Plaintiff’s counsel about the type of
work the Plaintiff could do, Dr. Oelofse
deferred to the Occupational
Therapist while substantiating that the Plaintiff could undertake
light duty back-friendly employment,
and under cross-examination, he
conceded that the Plaintiff could still work.
[16]
In her examination in chief, the Occupational Therapist, Ms.
Wiltshire, attested the Plaintiff’s pre-morbid
medium-duty
functional and physical capacities as well as her post-morbid light
to sedentary duties. Her employment as a farmer
is categorised as
being within the medium-duty range of functioning. She further stated
that the Plaintiff does not meet the full
scope of her premorbid
functionality as a farmer.
[17]
The Plaintiff’s supervising function on the farm, according to
Ms. Wiltshire, includes certain physical
chores, therefore if she
works in this capacity, she should avoid lifting heavy objects. The
Plaintiff’s career as a teacher
according to Ms. Wiltshire can
be classified as being light to medium duty, and thus the Plaintiff
does not meet the physical demand
as a teacher. Ms. Wiltshire further
conceded that the Plaintiff can continue the farm business in a
supervisory capacity during
cross-examination.
[18]
According to the Plaintiff’s Industrial Psychologist Mr.
Moodie, the Plaintiff is unemployable for
all intents and purposes
due to the injuries sustained in the accident coupled with her age.
[19]
During cross-examination, Mr. Moodie admitted that he did not ask the
Plaintiff where her farm was located,
and this could have impacted
her farming business income from month to month. For him the R7
000,00 income was based on what the
Plaintiff told him, which he
found not to be excessive and within the normal range of income for
the business the Plaintiff was
conducting before the accident. In
furtherance, Mr. Moodie conceded that he did not receive any proof of
income from the Plaintiff
to verify the R7 000,00 income as
stated to him by the Plaintiff.
[20]
In light of the evidence admitted under
section 3
of the
Law of
Evidence Amendment Act 45 of 1988
,
Rule 38(2)
, and
section 34(2)
of
the Civil Proceedings Evidence Act 25 of 1965, the Plaintiff’s
Physiotherapist opined that the Plaintiff’s injuries
will
negatively affect her productivity and that can however be improved
if she receives the necessary treatment.
Analysis
[21]
The primary question or finding in this matter is whether the
Plaintiff’s injuries incurred in the
accident have any impact
on her earning ability, and if so, to what extent her injuries affect
her productivity as a farmer, a
position she held before the
accident.
[22]
The court in
Southern
Insurance Association v Ballie NO
[1]
eloquently stated the following concerning loss of earning capacity:
“
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, augurs 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 way of
mathematical calculations, on the basis of assumptions
resting on the
evidence. The validity of this approach depends 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.”
[23]
The court in
Gwaxula
v Road Accident Fund,
[2]
stated
that it is imperative that the court in its decision achieve equity
and fairness to the parties and recognize the reality
that there is
no hard and fast rule regarding contingency allowances. It went on to
say that “
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”.
[3]
[24]
With the aforementioned, contingency only comes into play, once a
court makes a finding that indeed a party’s
earning capacity
has been impacted directly by an incident.
[25]
Considering the Defendant has not presented any expert evidence and
that the only evidence presented was
that of the Plaintiff’s
experts, I am left with no alternative but to consider the expert
opinions of the Plaintiff’s
experts regarding the Plaintiff’s
earning capacity.
[26]
While I must consider the Plaintiff’s expert evidence, I must
also emphasize that the said evidence
must be evaluated and legally
assessed for its veracity, and on whether the experts’ opinions
are based on the facts presented
to them, or whether the experts
tried to make a case where there is none. As can be observed in a
plethora of matters decided in
our courts, courts continuously hold
the view that the discretion of the Court cannot be usurped by expert
evidence, especially
actuaries, as their evidence only serves as a
guide.
[4]
[27]
Based on the evidence presented during the trial by the Orthopaedic
Surgeon, Occupational Therapist, and
Physiotherapist, I see no basis
for this court to conclude that the accident did not have a negative
impact on the Plaintiff’s
earning capacity; thus, the central
question is to what extent did the accident impact the Plaintiff’s
earning capacity.
[28]
Given the information gleaned from the medical expert reports, the
Industrial Psychologist postulates an
injured party’s loss,
from which an actuary then calculates a loss based on the factual
basis provided to him/her.
[29]
As already determined, the accident had a negative impact on the
Plaintiff’s earning capacity; however,
with regard to the
Industrial Psychologist’s report and the evidence presented by
him in Court, I find that the Industrial
Psychologist, Mr. Moodie,
has not made the necessary and must-needed inquiries to assist this
court with its findings; for example,
he conceded during his evidence
that he merely based his opinion on the other expert evidence and
what the Plaintiff intimated
to him, without making any further
inquiries surrounding the Plaintiff’s farming business, a far
cry from what is required
from him as an expert in his field.
[30]
The Supreme Court of Appeal in
Bee
v Road Accident Fund
[5]
reiterated that expert witnesses “are required to lay a factual
basis for their conclusions and explain their reasoning to
the
court”. A court uses this factual basis to evaluate any past or
prospective loss of income, by considering all relevant
facts and
circumstances,
[6]
which are
ordinarily referred to as contingencies.
[31]
Contingencies are things that cannot be precisely quantified or
otherwise prepared for, but they might affect
the damages claimed.
Typically, they’re covered by subtracting a certain percentage
of the total amount or particular claims
[7]
.
From
a broader viewpoint, contingencies are the perils that often plague
the lives and conditions of ordinary people.
[8]
[32]
The Supreme Court of Appeal in
RAF
v Guedes
[9]
stated that:
“
The
court necessarily exercises a wide discretion when it assesses the
quantum of damages due to loss of earning capacity and has
a large
discretion to award what it considers right. Courts have adopted the
approach that in order to assist in such a calculation,
an actuarial
computation is a useful basis for establishing the quantum of
damages. Even then, the trial court has a wide discretion
to award
what it believes is just.”
[33]
The Occupational Therapist stated in her report that, notwithstanding
the Plaintiff’s incapacity to
carry out all the
responsibilities of a farmer, due to the injuries sustained in the
accident, the Plaintiff might probably carry
on with her farming
business in a supervisory capacity until her retirement age of 65. An
opinion confirmed by the Industrial Psychologist
in his report.
[34]
In the current situation, I believe the Plaintiff’s typical
contingency should be as follows:
1.
For past loss of income
-
uninjured earnings
, a 5%
contingency deduction should apply to R493 584,00 which equates to
R468 904,80.
2.
For
injured earnings
, 45% contingency deduction should apply
to R493 584,00 which equates to R271 471,20, which gives a total past
loss of R197 433.60
3.
Future loss of income
-
uninjured earnings,
10%
contingency deduction should apply to R764 308,00 which equates to
R687 877,20.
4.
Injured earnings
, 60% contingency deduction should apply R764
308,00 which equates to R305 723,20 loss, which gives a total
future loss of
R382 154,00.
5.
The total loss of earnings past and future is R579 587,60.
[35]
During the Defendant’s closing argument and cross-examination,
the Defendant maintained that the Plaintiff
had not proven her case
because the information contained in the hospital records
contradicted the medical expert evidence. As
a result, the Defendant
presented a
novus actus interveniens
defence, which has not
been gainsaid by any counter-medical experts.
[36]
The court in
Minister
of Safety and Security v Van Duivenboden
[10]
pointed out that:
“
A
plaintiff is not required to establish the causal link will certainty
but only to establish that the wrongful conduct was probably
a cause
of the loss, which calls for a sensible retrospective analysis of
what would probably have occurred, based upon the evidence
and what
can be expected to occur in the ordinary course of human affairs
rather than metaphysics.”
[37]
The Plaintiff’s Orthopaedic Surgeon’s (Dr. Oelofse)
testimony is unchallenged as it stands. Dr.
Oelofse provided a sound
medical explanation for why the Plaintiff sustained the injuries
stated in his report. I thus have no
basis to reject his evidence in
the absence of any counter-medical expert evidence. The Defendant has
not proven its
novus actus interveniens
defence on a balance
of probabilities, and thus this defence cannot succeed.
[38]
In these circumstances, I believe it is reasonable to compel the
Defendant to pay the Plaintiff’s taxed
or agreed party and
party costs on the High Court scale.
Order
The
Defendant is ordered to:
1.
Pay the
Plaintiff an amount of R579 587,60 (five hundred and seventy-nine
thousand five hundred and eighty-seven rand and sixty
cents).
2.
Provide the
Plaintiff with a section 17(4)
(a)
undertaking
for as far as it has not been done already.
3.
Pay the
Plaintiff’s agreed or taxed party and party costs, scale A,
subject to the discretion of the taxing master, inclusive
of the
costs and expenses occasioned by the consultations with the experts
and their reports:
(a)
Dr. Oelofse,
Dr. Deacon Specialist Orthopeadic Surgeons – Report dated 18
November 2021
(b)
Mr. Michael –
Report dated 18 November 2021
(c)
Ms. Wiltshire,
Occupational Therapist – Report dated 29 June 2022
(d)
Mr. Moodie,
Industrial Psychologist – Report dated 16 September 2022
(e)
Mr. Mphuti,
Clinical Psychologist & Neuropsychologist – Report dated
8 February 2023
(f)
Johan Sauer
Actuaries – Report dated 8 August 2023
4.
Pay Interest
to the Plaintiff at 11,75 % per annum should payment not be made
within 180 days from the date of this Court Order.
RYNEVELDT
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
APPEARANCES
For
the Plaintiff:
Adv.
J.C. van Eeden
Instructed
by:
Appelgryn
Potgieter Attorneys
For
the Defendants:
Mr.
T.O. Mgwenya
Instructed
by:
State
Attorneys- Mbombela-Nelspruit
Date
of hearing:
11,
12, and 20 June 2024
Date
of judgment:
16
September 2024
[1]
Southern
Insurance Association v Ballie NO
1984
(1) SA 98
(A) at 99A-C.
[2]
Gwaxula
v Road Accident Fund
[2013] ZAGPJHC 240.
[3]
Ibid
para 25.
[4]
Coetzee
v Road Accident Fund
[2021] ZAFSHC 193
para 15
[5]
Bee
v Road Accident Fund
[2018]
ZASCA 52
;
2018 (4) SA 366
(SCA) para 22.
[6]
AA
Mutual Insurance v van Jaarsveld
1974
(4) SA 729
(A).
[7]
De
Jongh v Gunter
1975
(4) SA 78
(W) at 80F.
[8]
AA
Mutual Insurance Southern Insurance Association Ltd v Bailey
1984
(1) SA 98
(A).
[9]
RAF
v Guedes
2006
(5) SA 583
(SCA) para 8.
[10]
Minister
of Safety and Security v Van Duivenboden
[2002]
3 All SA 741
(SCA) para 25.