About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 324
|
|
Mvimbi v Road Accident Fund (3098/2021) [2024] ZAFSHC 324 (17 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: 3098/2021
In
the matter between
THAMSANQA
LINCOLN MVIMBI
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
Neutral
citation: Thamsanqa Lincoln Mvimbi v Road Accident Fund
Coram:
Chesiwe J
Heard:
21 June 2024
Delivered:
This judgment was handed down in open court and
electronically by circulation to the parties’ representatives
by email and
released to SAFLII. The date and time for hand-down is
deemed to be 13h00 on 17 October 2024.
Summary:
General
damages – left ankle injury (united bimalleolar fracture) –
determination of quantum based on undisputed facts
– court’s
duty to ensure that just and fair compensation is awarded.
ORDER
1.
Prayers 1, 2 and 3 of the Plaintiff’s
application in terms of Uniform Rule 38(2) are granted;
2.
The Defendant is liable to pay 80% (eighty
percent) of the Plaintiff’s proven or agreed damages;
3.
The Defendant shall pay the Plaintiff the sum of
R1 147 721-00 (one million one hundred and forty-seven thousand seven
hundred and
twenty- one rand) in respect of general damages and loss
of earning capacity set out as follows:
Loss of
Earnings:
R834 651-00
General
Damages:
R500 000-00
Less 20%
apportionment:
R268 930-00
Total:
R934 651-00
4.
The defendant shall pay the abovementioned amount
into the Plaintiff’s attorney’s trust account;
5.
The Plaintiff’s attorney’s trust
account details are as follows:
ACCOUNT HOLDER:
VZLR INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH
CODE:
632005
TYPE OF
ACCOUNT:
TRUST ACCOUNT
ACCOUNT
NUMBER:
3[…]
REFERENCE:
MAT161379
6.
The Defendant shall furnish the Plaintiff with an
undertaking in terms of section 17(4)(a) of Act 56 of 1996, in
respect of future
accommodation of the Plaintiff in a hospital or
nursing home or treatment of or the rendering of a service or
supplying of goods
of a medical and non-medical nature to the
Plaintiff (and after the costs have been incurred and upon submission
of proof thereof)
arising out of the injuries sustained in the
collision which occurred on 8 March 2020;
7.
In the event of default on the payment of the
costs, interest shall accrue on such outstanding amount at the
statutory more rate
on the date of taxation/settlement of the bill of
cost, as per the
Prescribed Rate of Interest Act 55 of 1975
, as
amended, per annum, calculated from the due date until the date of
payment;
8.
In the event that the Defendant does not, within
180 (one hundred and eighty) days from the date on which this order
is handed down,
make payment of the capital amount, the Defendant
will be liable for payment of interest on such amount at 11, 75%
(eleven percent)
(the statutory rate per annum) compounded and
calculated 14 (fourteen) days from date of this order;
9.
The Defendant is to pay the Plaintiff’s
taxed or agreed party and party cost, up to and including the date,
when this order
is made an order of court;
10.
The reasonable qualification fees of all the
Plaintiff’s experts whose reports had been furnished to the
Defendant and/or
its experts:
Dr JP Marin:
- Orthopaedic
Surgeon
Ms Joenita
-
Rita van Biljon
Occupational Therapist
Dr AC Strydom
- Industrial Psychologist
Mr J Sauer
-
Actuary
11.
Cost of Counsel on scale B including the drafting
of settlement submissions to the Defendant, the Plaintiff’s
initial heads
or argument, supplementary heads of argument and
replying heads of argument;
12.
In the event that cost is not agreed, the parties
agree as follows:
12.1
The Plaintiff shall serve a notice of taxation on
the Defendant’s attorney of record;
12.2
The Plaintiff shall allow the Defendant 14
(fourteen) court days to make payment of the taxed cost.
JUDGMENT
Chesiwe
J
[1]
The Plaintiff instituted a claim for damages
against the Road Accident Fund (RAF) for injuries sustained when the
insured driver
collided with the Plaintiff who was a pedestrian on 8
March 2020 in Kroonstad.
[2]
The Defendant conceded the merits at 80% (eighty
percent) for the Plaintiff’s proven and agreed damages as well
as an undertaking
in terms of
s 17(4)(a)
, limited to 80% (eighty
percent).
Background
[3]
Plaintiff lodged an application in terms of
Rule
38
to have the evidence of experts be admitted in form of affidavits.
Before the application could be granted, Counsel for the Defendant
submitted that the application is not opposed, provided that the
Plaintiff testified
viva voce
as there were issues on which Counsel for the
Defendant wished to cross-examined the Plaintiff. The
Rule 38
application was therefore granted. The Plaintiff’s expert
reports were filed and accepted into the record.
[4]
The only issue for determination by this Court, is
the claim for general damages and loss of earning capacity.
Plaintiff’s
Evidence
[5]
Plaintiff took to the witness stand and testified
as follows: That on 8 March 2020, he was involved in a motor vehicle
accident.
He sustained an injury on the left ankle. He was
immobilized with a back slab. He was operated on his ankle on 13
March 2020 and
discharge on 24 March 2020.
[6]
Plaintiff stated that when the accident occurred,
he was unemployed, but was selling food and fruits at a school as a
vendor. He
was previously employed at an old age home as a general
worker, but could not recall the year. After his employment at the
old
age home, he was employed at PVC Ceilings where he was later
retrenched in December 2019. At PVC Ceilings, he earned R38 134,00
per annum. He did not find any employment thereafter.
[7]
Plaintiff’s further evidence is that, before
the accident he used to play soccer. However, after the accident, he
cannot walk
fast nor stand for long periods. Further that, when it is
cold, the operated side is painful and he cannot bend down to lift
heavy
objects.
[8]
Under cross-examination, Plaintiff stated that as
a food and fruit vendor, he used to earn R700-00 (seven hundred rand)
to R1000-00
(one thousand rand) per month if it is was a busy month
that is. As he was selling at a school, when schools were closed, he
did
not have any income. Plaintiff denied that he resigned at PVC
Ceilings, but was retrenched and that the experts would be incorrect
if they were to say that he did gardening after the accident.
Plaintiff explained that the gardening work was at the old age home
and before the accident. Plaintiff confirmed that he is currently
still selling food and fruits at Mtha Primary School and that
it was
the only way to earn an income at this stage. That was the evidence
of the Plaintiff.
[9]
The Defendant did not call any witnesses and
closed its case.
[10]
Both parties submitted heads of argument on 7 June
2024 and 14 June 2024 respectively, a reply if any was to be filed on
21 June
2024.
Submission
[11]
Counsel on behalf of the Plaintiff submitted
in written heads argument as follows: That the Plaintiff is wholly
reliant on his physical
ability to work and has been severely
truncated. That the Plaintiff’s injuries and treatment have
impacted on his life amenities
and that Plaintiff cannot be gainfully
employed post-morbidity. That the injured operated ankle must not be
understated as the
ankle is needed for standing, walking and bending.
[12]
Counsel on behalf of the Defendant submitted
in the written heads of argument as follows: That the Plaintiff’s
injuries are
not of a serious nature and the comparable cases in
respect of general damages. Where the Court granted just and fair
awards with
regard to loss of earning capacity, Counsel submitted
that the Plaintiff did not provide any proof of income. Further that,
Plaintiff
contradicted the information that is contained in the
experts’ reports. Moreover, the Court ought to dismiss the
Plaintiff’s
claim as the Plaintiff did not show on the balance
of probabilities, that he has suffered a loss of income.
General
damages
[13]
An
award for general damages should be reasonable and fair. The Court
takes cognizance of the fact that is has a discretion when
awarding
general damages. On the other hand, the Court in
Pitt
v Economic Insurance
Co
Ltd
[1]
,
cautioned not to pour largesse from the horn of plenty at the
defendant’s expense.
[14]
The Court has to take into account the
nature, severity and permanency of the injuries sustained together
with the pain, suffering,
disfigurement, permanent disability and the
effect thereafter on the person’s lifestyle.
[15]
The Orthopedic Surgeon, Dr J P Marin in his
report, diagnosed the Plaintiff with a united bimalleotar fracture
treated with plate
and screws that resulted in post-traumatic
osteoarthritis of the ankle joint and causing residual pain.
[16]
Dr
Martins concluded as follows
[2]
:
“
11.2.13
The patient will be advised not to do physical labor.
11.2.14 It is my opinion
that the patient will be able to work to the normal retirement age of
65 (sixty-five) years.
11.2.15…
12 LONGEVITY
12.1 The accident and
accompanying injury did not have a detrimental effect on the
patient’s life expectancy.”
[17]
Ms.
Joenita Friedrichs, the Occupational Therapist in her report
[3]
stated as follows:
“
l.
The symptoms in Plaintiff’s leg had a negative impact on his
mobility, dynamic, postural ability and weight handling ability.”
[18]
Ms. Fredericks mentioned further that:
“Plaintiff’s physical ability is best suited to sedentary
employment as his physical
ability is suited to frequent sitting.”
[19]
The
report of Dr Strydom, Clinical Psychologist, he opined
[4]
that: “It is well known that a person, who is constantly
exposed to pain and discomfort, is unable to perform at their best
or
perform at the required standard and may thus be at risk of losing
their employment, i.e., either be dismissed for poor performance
or
to resign prematurely or by taking early pension.”
[20]
These expert reports stand uncontested as the
Defendant did not file any reports to dispute those of the Plaintiff.
[21]
Plaintiff in his oral evidence indicated that he
used to play soccer, but cannot play any more as the accident
affected his life
amenities. The Plaintiff said he cannot walk fast
or stand for long periods and when it is cold, the operation pains
nor can he
carry heavy objects.
Comparable
cases
[22]
The following comparable cases are considered in
respect of the case that is before this Court:
Gatya
v Member of the Executive Council, Department of Education, Eastern
Cape and Another
[5]
.
Plaintiff in this case sustained a bi-lateral ankle fracture and
presented with a limp and had no restricted movement. An award
of
R574 000-00 (five hundred and seventy-four thousand rand)
was
granted.
Storm
v Road Accident Fund
[6]
.
Claimant in this case sustained additional injuries compared to the
Plaintiff in this case with a possibility of an amputation
of his
right leg. The Court therefore consider an amount of R450 000
(four hundred and fifty thousand rand) to be fair and
adequate
compensation to the injured party in respect of his general damages.
Alla
v Road Accident Fund
[7]
.
Claimant suffered a fracture of the ankle with displacement of the
tibial-fibula joint and soft tissue injury, had removal of
internal
fixtures and still had dislocation of the ankle joint and was awarded
R370 000-00 (three hundred seventy thousand rands).
[23]
Indeed,
the Plaintiff has to be compensated for injuries sustained in the
accident. However, the award must be fair, just and reasonable
to
both parties. The Plaintiff’s injuries are not of such a
serious nature that he was to be awarded a high amount as the
principle on awarding damages is not to pour out largesse from the
horn of plenty in favor of the Plaintiff.
[8]
[24]
Having considered the above comparable cases, as
well as the expert reports, in my view a fair and reasonable amount
for general
damages to be awarded is R500 000-00 (five hundred
thousand rand).
Loss
of earning capacity
[25]
Indeed, it is difficult to quantify the loss of
earning or earning capacity of an unskilled self-employed individual
such as Plaintiff
in this case. Plaintiff testified that he was a
vendor selling food and fruits at a local school and that his income
varied between
R700-00 (seven hundred rand) and R1000-00 (one
thousand rand). The Plaintiff confirmed that even post the accident,
he is still
self-employed as a vendor and still functions in the same
way except that he is unable to find employment.
[26]
Plaintiff did not provide this Court with any
proof of income. The Court takes cognizance of the fact that as a
vendor and that
he is self-employed, there may be no proper keeping
of his financial records.
[27]
It is clear that Plaintiff has suffered loss of
earning and evidently with no case law which can be compared for a
vendor such as
him. Had the Plaintiff been in a position of formal
employment, it would have assisted the Court to compare the loss of
earnings.
The Court can only rely on mathematical calculations of the
actuarial report of the Plaintiff as the Defendant did not file an
actuarial report to dispute that of the Plaintiff’s.
[28]
Counsel
for Defendant could only dispute the loss of earnings through
calculations attached to the written heads of argument
[9]
,
where there is uncertainty in respect of the actuarial report.
[10]
[29]
In
Southern
Insurance Association Ltd v Bailey NO
[11]
,
the court said:
“
Any
enquiry into damages for loss of earning capacity is to its nature
speculative because it involves a prediction as to the future
without
the benefit of crystal balls, soothsayers, augers 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 a loss.”
[30]
Indeed, the Plaintiff testified that he was
employed as a general worker at an old age home and at PVC Ceilings
and that at the
time of the accident he was a vendor and has since
went back to vending post the accident.
[31]
The
Plaintiff in my view did not sit underlying on fears, anxieties,
traumas, emotions, or stressors and avoiding real life. He
created
something for himself. I cannot agree with Counsel for the Defendant
that the Plaintiff was dishonest in his evidence with
regard to his
employment history. There may be a discrepancy in respect of his
employment history, bearing in mind that the Plaintiff
only went to
school up to standard nine and indeed the, background is that of an
unskilled worker
[12]
. The
Plaintiff cannot be faulted for not giving detailed information and
in sequence form.
[32]
The
updated actuarial report of Mr. John Sauer
[13]
,
indicates the Plaintiff’s past loss of earnings as R215 905-00
(two hundred and fifteen thousand nine hundred and five rand)
and
future loss of earnings as R632 053-00 (six hundred and thirty-two
thousand fifty-three rand) with total loss of earnings at
R847
958-00(eight hundred and forty-seven thousand nine hundred and
fifty-eight rand). Counsel for the Defendant on the other hand
indicates in the written heads of argument the past loss of earnings
at R227 268-00 (two hundred and twenty-seven thousand two
hundred and
sixty-eight rand) with a contingency of 50% (fifty percent) and
future loss of R665 319-00 (six hundred and sixty-five
thousand three
hundred and nineteen rand) with a contingency of 50% (fifty percent).
Total loss of earnings being at R133 888-05
(one hundred and
thirty-three thousand eight hundred and eighty-eight rand and five
cents).
[14]
[33]
However, the Court has before it the
actuarial calculations and these cannot be ignored even though these
calculations are a formal
guess work into the future however, have
the advantage of logical application.
[34]
The Court has to accept that the Plaintiff
will have difficulty to compete in the labor market and cannot
therefore not compete
as a result of the injury and his level of
education. Counsel or the Defendant submitted that a higher
contingency be applied up
to 50% for both past and future loss of
earning capacity. Counsel for the Plaintiff submitted that a
contingency of between 5%
(five percent) and 7% (seven percent) be
applied.
[35]
It
is trite that contingency deductions are within the discretion of the
Court and are dependent upon the Court’s impression
of the
case. Contingency is normally calculated at 5% (five percent) for
past loss of income and 15% (fifteen percent) for future
loss of
income.
[15]
[36]
The factors the Court has to consider when
determining contingency are the probability that Plaintiff may have a
less than normal
life expectancy which the experts agree that the
accident has not affected. Whether Plaintiff will experience periods
of unemployment
by reason of incapacity due to the accident, labor
unrest or general economic conditions.
[37]
“
It
is now 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 both parties. There is no hard and fast
rule regarding
contingency allowances.”
[16]
[38]
In my view a fair, just and reasonable
contingency of 5% (five percent) for past loss and 25% (twenty five
percent) for future loss
should be applied.
Costs
[39]
The general rule is that costs follow
the event and with costs being the discretion of the Court. The Court
therefore awards costs
on a party and party scale B.
Order
[40]
Accordingly, the following order is made:
1.
Prayers 1, 2 and 3 of the Plaintiff’s
application in terms of Uniform
Rule 38(2)
are granted;
2.
The Defendant is liable to pay 80% (eighty
percent) of the Plaintiff’s proven or agreed damages;
3.
The Defendant shall pay the Plaintiff the sum of
R1 147 721-00 (one million one hundred and forty-seven thousand seven
hundred and
twenty- one rand) in respect of general damages and loss
of earning capacity set out as follows:
Loss of
Earnings:
R834 651-00
General
Damages:
R500 000-00
Less 20%
apportionment:
R268 930-00
Total:
R934 651-00
4.
The defendant shall pay the abovementioned amount
into the Plaintiff’s attorney’s trust account;
5.
The Plaintiff’s attorney’s trust
account details are as follows:
ACCOUNT HOLDER:
VZLR INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH
CODE:
632005
TYPE OF
ACCOUNT:
TRUST ACCOUNT
ACCOUNT
NUMBER:
3[…]
REFERENCE:
MAT161379
6.
The Defendant shall furnish the Plaintiff with an
undertaking in terms of section 17(4)(a) of Act 56 of 1996, in
respect of future
accommodation of the Plaintiff in a hospital or
nursing home or treatment of or the rendering of a service or
supplying of goods
of a medical and non-medical nature to the
Plaintiff (and after the costs have been incurred and upon submission
of proof thereof)
arising out of the injuries sustained in the
collision which occurred on 8 March 2020;
7.
In the event of default on the payment of the
costs, interest shall accrue on such outstanding amount at the
statutory more rate
on the date of taxation/settlement of the bill of
cost, as per the
Prescribed Rate of Interest Act 55 of 1975
, as
amended, per annum, calculated from the due date until the date of
payment;
8.
In the event that the Defendant does not, within
180 (one hundred and eighty) days from the date on which this order
is handed down,
make payment of the capital amount, the Defendant
will be liable for payment of interest on such amount at 11, 75%
(eleven percent)
(the statutory rate per annum) compounded and
calculated 14 (fourteen) days from date of this order;
9.
The Defendant is to pay the Plaintiff’s
taxed or agreed party and party cost, up to and including the date,
when this order
is made an order of court;
10.
The reasonable qualification fees of all the
Plaintiff’s experts whose reports had been furnished to the
Defendant and/or
its experts:
Dr JP Marin:
- Orthopaedic
Surgeon
Ms Joenita
-
Rita van Biljon
Occupational Therapist
Dr AC Strydom
- Industrial Psychologist
Mr J Sauer
-
Actuary
11.
Cost of Counsel on scale B including the drafting
of settlement submissions to the Defendant, the Plaintiff’s
initial heads
or argument, supplementary heads of argument and
replying heads of argument;
12.
In the event that cost is not agreed, the parties
agree as follows:
12.1
The Plaintiff shall serve a notice of taxation on
the Defendant’s attorney of record;
12.2
The Plaintiff shall allow the Defendant 14
(fourteen) court days to make payment of the taxed cost.
CHESIWE
J
Appearances
For
the Applicant:
Adv.
A Sander
Instructed
by:
Du
Plooy Attorneys
Bloemfontein
For
the First and Second Respondents:
Ms
J Gouws
Instructed
by:
Road
Accident Fund
Bloemfontein
[1]
1957
(3) SA 284
(N) at 287 E-F
[2]
Index:
Expert Notices Vol 1, page 39
[3]
Index:
Expert Notices Vol 1, page 56
[4]
Index:
Expert Notices Vol 1, page 14 at para 16.5
[5]
(3671/2014)
[2019] ZAECPEHC 51 (29 August 2019)
[6]
(17949/2018)
[2021] ZAGPJHC 12 (29 January 2021)
[7]
338/2010
QOD Vol VI E8-1
[8]
(See
Pitt Supra)
[9]
Defendant’s
Heads of Argument, page 34
[10]
(See
Enslin v Meyer1960 (4) SA 520 (T)
[11]
1984(1)
SA 98 (A) at 113F – 114
[12]
Index:
Expert Notices Vol 1,
page
7
[13]
Index:
Expert Notices Vol 1, page 74
[14]
Defendant’s
Heads of Argument, page 34
[15]
Southern
Insurance Supra
[16]
Masemola
v Road Accident Fund [2023] ZAGPPHC 553; 17336/2017 (2 July 2023
)
at para [41]