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[2024] ZAKZPHC 87
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Sabelo v Road Accident Fund (11618/2018 P) [2024] ZAKZPHC 87 (14 October 2024)
Amended
15 August 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
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 11618/2018 P
In the matter between:
ERIC
SABELO
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
Shapiro AJ:
Background
[1] The plaintiff
sues the defendant for damages as a consequence of the bodily
injuries he sustained in a motor vehicle collision
that occurred on
24 August 2017.
[2] The plaintiff
was a pedestrian at the time of the collision, whilst repairing
another motor vehicle, and was struck by
the insured motor vehicle.
[3] The defendant
has conceded that it is liable to compensate the plaintiff for the
injuries he sustained in the collision.
[4] The matter was
initially set down for a determination of the quantum of the
plaintiff’s claim, on 25 March 2024,
consequent upon an order
granted on 13 February 2023.
[5] On that date,
the defendant sought to interrogate the plaintiff’s past
earnings, and the matter was accordingly
adjourned to the 7 to 9
October 2024 for a determination of the quantum of the plaintiff’s
claim.
[6] The plaintiff
seeks damages for past and future loss of earnings and general
damages.
[7] The plaintiff
does not pursue any claim for past medical expenses in these
proceedings.
[8] The defendant
has accepted that the plaintiff has suffered a “
serious
injury
” and that he is accordingly entitled to general
damages.
[9]
The defendant has also undertaken to provide the plaintiff with an
Undertaking in terms of
Section 17
(4) (a) of the
Road
Accident Fund Act, No. 56 of 1996
.
[10] The only
issues that remain for determination are the quantum of the
plaintiff’s claim for past and future loss
of earnings and an
appropriate award of general damages.
Expert Witnesses
[11] The plaintiff
qualified the following experts:
11.1
Dr Leon Rajah, the orthopaedic surgeon;
11.2
Dr Mike Du Trevou, the neurosurgeon;
11.3
Dr Roseanne Hardy, the neuropsychologist;
11.4
Ms Collene Kisten, the occupational
therapist;
11.5
Mr Damien Askew, the orthotist and
prosthetist; and
11.6
Ms Karin Plaatjes, the industrial
psychologist.
[12] The defendant
qualified the following experts:
12.1
Ms Ashnie Maharaj, the occupational
therapist and
12.2
Mr Thokozo Makathini, the industrial
psychologist.
[13] The
occupational therapists and the industrial psychologists engaged by
both parties compiled joint minutes.
[14]
The parties are bound by any agreements and admissions made by their
respective expert witnesses in their joint minutes
[1]
.
The Plaintiff
[15] The plaintiff
was born on 11 March 1997. The plaintiff was 20 years old at the date
of the collision and is now 27 years
old.
[16] The experts
engaged by both parties recorded the plaintiff’s history as
follows:
16.1
the plaintiff attained a grade 12 diploma
pass in 2016;
16.2
he currently resides in the family home
with his biological siblings;
16.3
prior to the collision, he had been
employed as a motor mechanic, general worker, truck assistant, taxi
rank manager and a self-employed
auto electrician (at the time of the
collision);
16.4
post-morbidly, he had endeavoured to
complete a Diploma in Management Assistance;
16.5
he had also endeavour to return to work as
a taxi rank manager, but was unable to do so.
The Plaintiff’s
Injuries
[17] It was pleaded
that the plaintiff sustained a severe brain injury, together with
orthopaedic injuries, in the collision.
The Head Injury
[18] The plaintiff
was assessed by
Dr Mike Du Trevou
, the neurosurgeon, on 31
July 2019.
[19]
From his assessment of the relevant medical records, Dr Du Trevou
recorded that:
19.1 the plaintiff
was involved in a motor vehicle collision, as a pedestrian, on 24
August 2017;
19.2 the plaintiff
recorded that he was repairing a vehicle on the side of the road when
the incident occurred. He believed
that he was rendered unconscious,
as he only “
woke up
” some 6 days later;
19.3 the plaintiff
was attended upon by paramedics at the scene of the collision and was
eventually transferred to Addington
hospital, in Durban;
19.4 he was
treated at the trauma unit of Addington Hospital at 11h30 on 25
August 2017, where the nursing staff recorded
that he was “
responding
to pain only
” and “
appears to be disorientated
”,
with a Glasgow Coma Score of 14/15;
19.5 he underwent
a computer tomography scan of his brain, which revealed that he had
sustained “
a left frontal lobe haemorrhagic contusion
”
and “
a fracture of the medial wall of the right orbit
”;
19.6 the computer
tomography scan was discussed with the neurosurgical registrar of the
Inkosi Albert Luthuli Central Hospital,
who advised that the
plaintiff should be admitted for neurological observation;
19.7 following
admission to the Ward, the plaintiff was confirmed as being
disoriented with a Glasgow Coma Score of 14/15,
which deteriorated to
11/15;
19.8 he remained
in an altered level of consciousness for a prolonged period, was
noted as fully conscious on 3 September
2017, but was again recorded
as being “
mildly disorientated
” on 4 September
2017;
19.9 the medical
records also recorded that the plaintiff sustained “
compound
fractures of the left tibia and fibula bones, with his lower leg
being described as mangled
” and “
a closed fracture
of the clavicle (collarbone)
”;
19.10 the medical
records also record that the plaintiff underwent a “
below
knee amputation on the left
”; and
19.11 he was
discharged from hospital on 18 September 2017.
[20]
Dr Du Trevou recorded that, although the plaintiff had never suffered
from any seizures, nor had he been
on antiepileptic treatment, a
cerebral contusion carried a 23% risk for the development of epilepsy
and that the plaintiff’s
risk of developing epilepsy was
estimated at 7-10%.
[21]
In conclusion, Dr Du Trevou was of the opinion that the plaintiff
suffered “
a severe brain injury
” and recorded
that, given the plaintiff’s history, “
it is inevitable
that he will be found by a neuropsychologist to have severe
abnormalities of both personality and cognition
”.
The Sequelae of the
Head Injury
[22]
The plaintiff was assessed by
Dr Roseanne Hardy
, the
neuropsychologist on 7 March 2019.
[23] Dr
Hardy concluded, upon her assessment of the plaintiff, that the
available evidence indicated that the
plaintiff had suffered a severe
traumatic brain injury. She recorded that this was confirmed by
radiological evidence of a haemorrhagic
contusion to the left frontal
lobe. She recorded that his reported complaints and test findings
were indicative of a significant
neuropsychological impairment. As
there was no report of developmental dysfunction, premorbid academic
or cognitive difficulties,
his level of dysfunction is attributable
to the residual effects of the injury sustained in the motor vehicle
collision.
[24] Dr
Hardy recorded the plaintiff as having headaches, suffering from
fatigue, having a phantom limb pain,
pain in the left collarbone,
swelling and pain in the jaw, difficulty chewing hard foods,
diminished physical mobility (reliant
on crutches). She also recorded
that, cognitively, his complaints included memory impairment, poor
attention and concentration,
difficulty following instructions,
mental fatigue and slow thinking. She further recorded emotional and
behavioural complaints
which included diminished frustration
tolerance, a short temper, feelings of sadness and frustration at the
loss of his premorbid
capacity and independence, loss of interest,
social and emotional withdrawal, feelings of worthlessness,
persistent thoughts of
the accident, nightmares and a fear of cars
and the road.
[25] Dr
Hardy’s neuropsychological assessment revealed a range of
deficits consistent with variable and
severe impairment of
neuropsychological function, which included, average motor speed,
severely defective manual dexterity and
fine motor coordination,
average to severely defective attention, concentration and tracking,
defective to severely defective speed
of processing, average to
defective visuoperceptual and visuoconstructional ability, average to
severely defective verbal memory
functioning, average visual memory,
below-average working memory, below-average to borderline verbal
fluency, average to severely
defective executive functioning and a
below average IQ.
[26] Dr
Hardy concludes that the aforegoing deficits of all consistent with
the residual effects of a severe brain
injury.
The orthopaedic
injuries
[27]
The plaintiff was assessed by
Dr Leon Rajah
, the orthopaedic
surgeon, on 30 October 2018.
[28] Dr
Rajah confirmed the medical records recording that the plaintiff had
a “
mangled left lower limb
” and “
fractured
left clavicle
”.
[29] Dr
Rajah also confirmed the x-ray taken on 30 October 2018 demonstrated,
with reference to the left clavicle,
that there is a “
healed
fracture of the mid-shaft of the clavicle and this is healed with
satisfactory alignment but with slight overlap of fracture
fragments
”. He also confirms, with reference to the left
tibia and fibula, that there was an uncomplicated below knee
amputation.
[30] Dr
Rajah recorded the plaintiff as having persistent pain over the
clavicle on the left side, not being able
to lift/manipulate heavy
objects with his left upper limb and, with the use of crutches,
sustaining recurrent pain/sticking at
the left shoulder/clavicle.
The Impact on the
Plaintiff’s Employability
[31]
Ms Collene Kisten,
the
occupational therapist engaged by the plaintiff, assessed the
plaintiff on 12 October 2018.
[32] Ms
Kistin confirmed that:
32.1
the plaintiff presented with an amputation
below the left knee, with a 13 cm scar on the stump;
32.2
his balance and equilibrium reactions were
reduced on the right side, that he ambulated with bilateral elbow
crutches, that he was
unable to lift or carry moderate to heavy
weighted objects and his standing and walking tolerance was reduced;
32.3
that her test results revealed that the
plaintiff presented with fluctuating ability in cognitive domains and
poor perceptual ability,
and that he may accordingly experience
difficulty with further education and training;
32.4
that her physical assessment revealed that
the plaintiff’s muscle strength was reduced in the left upper
limb musculature,
his dynamic balance was reduced in the right lower
limb, that he was able to bend with external support but could not
lift, carry,
push nor pull moderate to heavy weighted objects, that
his standing and walking tolerance was reduced and that his endurance
was
reduced in physically demanding and strenuous tasks;
32.5
from a physical perspective, the plaintiff
presented with residual pain and physical deficits attributed to the
fracture of the
left clavicle and the left below knee amputation,
that the vocational avenues available to him had been narrowed and
limited and
that he is precluded from engaging in any physically
orientated, manual occupations of moderate to heavy physical strength
demands,
such as an auto electrician, and that he is now limited to
sedentary unskilled occupations, which are not readily available.
[33]
Ms Ashlnie Maharaj
,
the occupational therapist engaged by the defendant, assessed the
plaintiff on 23 February 2023.
[34] Ms
Maharaj confirmed:
34.1
the plaintiff’s physical limitations
to be impaired mobility skills for all basic and advanced skills,
including walking,
running, stair climbing, repetitive squatting and
advanced postures such as crouching and kneeling, that his weight
handling capacity
was limited to sedentary demands unilaterally, that
his neurocognitive fallout required repetition of instructions and
use of demonstration
and that his psycho socioemotional limitations
related to the collision;
34.2
that the plaintiff had suffered a loss of
the amenities of life as a consequence of the injuries he sustained
in the collision,
which included, a head injury associated with
neurocognitive fallout and perceptual limitations, increased
vulnerability at work
with the prospect of being unemployed by virtue
of his functional limitations, a loss of limb by virtue of the below
knee amputation,
scarring and disfigurement and emotional suffering
with a deterioration in his social ability and tendency to isolate
himself;
34.3
that in his uninjured condition, the
plaintiff had fulfilled his ambition of becoming a self-employed
motor mechanic, with auto
electrical work experience, and had planned
to build his business and employ other staff members to assist him,
that at the time
of the collision he was self-employed as a motor
mechanic and was unable to return to work due to the injury sustained
in the collision;
and
34.4
based on her assessment findings, the
plaintiff was unlikely to be able to further his studies or cope with
learning new and complex
skills, that he had been disadvantaged in
the open labour market and that his employment options were limited.
[35] In the joint
minute concluded by the occupational therapists, they agreed:
35.1
on their assessment findings of the
plaintiff;
35.2
that, pre-morbidly, the plaintiff would
have remained self-employed as an unqualified auto electrician for as
long as possible with
anticipated growth and expansion of his
business, or unless better opportunities arose;
35.3
that if he elected not to remain
self-employed, he would not have been precluded from procuring
similar positions in the open labour
market commensurate with his
education and work history and would not have been precluded from
engaging in alternative physically
orientated, labour-intensive,
manual occupations of medium to heavy physical strength demands;
35.4
that an analysis of the plaintiff’s
occupation as an auto electrician revealed that it is a physically
orientated, manual
occupation of medium to heavy strength demands and
requires intact upper and lower limb function, adequate dynamic
balance, satisfactory
standing tolerance and optimal low limit
dynamic postures as well as the ability to lift, carry, push and pull
variable weighted
objects;
35.5
that in his post-morbid state, the
plaintiff’s vocational avenues had been narrowed and limited,
and that he was precluded
from engaging in labour-intensive,
physically orientated, manual occupations of medium to heavy physical
strength demands, such
as an auto electrician, and was limited to
sedentary unskilled occupations, which were not readily available,
but might be able
to procure employment with low cognitive demands,
dependent upon a sympathetic and tolerant employer;
35.6
that the plaintiff was precluded from
engaging in purely sedentary occupations, given his lack of formal
education, limited work
history and neurocognitive deficits; and
35.7
that the probability of unemployment
exists.
[36]
Ms Karin Plaatjes
,
the industrial psychologist engaged by the plaintiff, assessed the
plaintiff on 2 September 2019.
[37] Ms
Plaatjes ascertained from the plaintiff that, at the time of the
collision, he was self-employed as an
auto electrician, working in a
50% partnership with a friend, Richard, who was tragically killed in
the collision forming the subject
of these proceedings. He would
attend upon customers’ premises and repair their motor
vehicles. He was earning approximately
R 1,250.00 per week from this
enterprise.
[38] Ms
Plaatjes was of the opinion that:
38.1
the plaintiff’s reported pre-morbid
earnings at the time of the collision (R 64,992.00 per annum) were
“
slightly above the upper
quartile
” of the reported
earnings of “
people who are
self-employed in the informal sector
”,
as published by Robert Koch (2017), of R 59,000.00 per annum;
38.2
having regard to the plaintiff’s
post-morbid attempt at furthering his education, the probabilities
favoured that he would
have also endeavoured to do so in his
premorbid state and would have attained a diploma (in 2022) and would
have been able to obtain
employment at a semi-skilled level, as an
auto electrician, earning R 2,896.20 per week (R 150,591.00 per
annum);
38.3
the plaintiff would probably have qualified
as an artisan/journeyman by age 30 (2027) earning R 3,311.10 per week
(R 172,164.00
per annum);
38.4
the plaintiff would then reach his career
ceiling by age 45, earning at the median of Paterson C1 level (R
470,000.00 per annum),
with inflationary linked increases thereafter
to retirement age of 65.
[39] Ms
Plaatjes was of the opinion that there is a greater likelihood of the
plaintiff remaining unemployable
for the remainder of his working
life.
[40]
Mr Thokoza Makhatini
,
the industrial psychologist engaged by the Defendant, assessed the
plaintiff on 28 March 2023.
[41] Mr
Makhatini recorded that, from his assessment of the plaintiff, he was
of the opinion that:
41.1
the plaintiff was likely to have continued
in his employment as a self-employed auto electrician, and increased
his earnings, in
his premorbid state, that there was nothing in his
vocational potential that suggested curtailment of his working life
and that
he was a candidate for alternative employment should he have
decided to seek similar employment in the open labour market;
41.2
the plaintiff would not have been precluded
from pursuing college studies, as he attempted to do post morbidly,
and was likely to
be able to cope with such studies until completion;
41.3
the plaintiff was likely, in his pre-morbid
state, to have the earning potential of between R 236,000.00-R
455,000.00 per annum
by age 45, and most probably have worked through
to normal retirement age of 65;
41.4
in his post-morbid state, the plaintiff is
“
no longer a candidate for any
gainful employment
”.
[42] In the joint
minute concluded by the industrial psychologists:
42.1 they agreed
on the plaintiff’s level of education, being a grade 12, that
at the time of the collision, that he
was self-employed as a
semi-skilled auto electrician, earning approximately R 1,250.00 per
week, that the business was not registered
and accordingly he had no
records, and that, given his age at the time of the collision, he
would have opted to study at tertiary
level and would have sought
more formal employment opportunities on the open labour market
thereafter;
42.2
they disagreed on the plaintiff’s
pre-morbid career progression however:
42.2.1
with Miss Plaatjes being of the opinion
that the plaintiff would have pursued a career as an auto
electrician, would likely to have
completed a diploma in June 2022,
would have procured employment at a semi-skilled level, earning R
2,896.20 per week, would have
passed his trade test by age 30 (2027)
and qualified as an artisan/journeyman, earning R 3,311.10 per week,
would have progressed
to the median of Paterson C1 package, earning R
519,000.00 per annum by age 45; and
42.2.2
with Mr Makhatini being of the opinion that
the plaintiff was not deterred from entering formal employment and
also completing certificate
level studies and would have reached his
career ceiling earning R345,500.00 per annum (average) by age 45, but
conceding that he
was likely to reach a career ceiling of R
438,900.00 by age 45;
42.3
they agreed, as compromise, that the
plaintiff would most probably have reached a career ceiling of
earning R 478,750.00 per annum
by age 45 and would thereafter receive
annual inflationary linked increases until retirement age of 65;
42.4
they agreed that, in his post-morbid state,
that there is a greater likelihood that the plaintiff will remain
unemployable.
The evidence given
at trial
[43]
It was against the backdrop of the evidence described above that the
plaintiff testified and led the evidence
of three other witnesses.
[44]
By and large, the plaintiff's evidence was consistent with what he
had reported to the various professionals
who assessed him over time.
[45]
The plaintiff explained how he came to work with the late Richard as
an auto electrician, starting part time
whilst he was still at school
and then becoming full-time after he matriculated.
[46]
He testified that he and Richard divided their earnings equally and
that he usually worked about three days
week with some weeks being
more lucrative than others. On average, he earned approximately R1250
per week.
[47]
The plaintiff testified of his attempts to study further after the
accident and to obtain sedentary employment.
None of these attempts
were successful and the reasons that he gave not only are consistent
with what he told the experts, but
also consistent with his brain
injuries and their sequelae.
[48]
Although the plaintiff did get confused at times, I found him to be a
truthful and reliable witness. He was
forthright in his evidence and
did not attempt to over-elaborate or exaggerate.
[49]
The plaintiff's evidence was also consistent with the evidence of
three taxi owners who testified, namely
Messrs Nkululeko Nopakela,
Simphiwe Mlindazwe and Lizalise Noxhaka.
[50]
All three gentlemen testified that they knew the plaintiff and had
made use of his services with Richard
to repair their vehicles at the
taxi rank from which they operate. Their independent versions of how
the business was run and what
was charged were all consistent and
corroborated the plaintiff's version in all material respects.
[51]
They testified that Richard and the plaintiff would charge them
approximately R600 as a labour charge to
repair, for example, a
starter motor and that they would be required to purchase the spares
themselves. Quotations were given orally,
and payments were made in
cash.
[52]
After the plaintiff closed his case, defendant did not seek to lead
any countervailing evidence and closed
its case as well.
The
assessment of the evidence and the probabilities
[53]
It is therefore against that evidence, and its probabilities, that I
am required to assess the plaintiff's
claim for general damages and
loss of earnings.
[54]
Ms Dlamini, who most ably represented the defendant, argued that the
plaintiff's evidence about his earnings
was neither of sufficient
quality nor quantity to be reliable.
[55]
She argued that the plaintiff would not necessarily work all day
every day, and that the kinds of repairs
described by his witnesses
(replacing starter motors, vehicle wiring and repairing indicator
lights) were not regular repairs that
would have kept either him or
Richard busy with any regularity.
[56]
Ms Dlamini argued that it was therefore entirely uncertain whether
the plaintiff's business would have sustained
itself or grown in the
manner canvassed by the expert witnesses.
[57]
I do not agree. The plaintiff was obviously a skilled auto
electrician and was building a business repairing
taxis at an
exceptionally busy taxi rank. The impression that I got from the
evidence led was that Richard (whose surname plaintiff
could not
recall and which the other witnesses did not know) were the "go-to"
auto electricians at the taxi rank and
I am inclined to accept that
their business would have continued generating at least the
relatively modest amounts on which the
plaintiff's claim was
predicated.
[58]
Given the plaintiff's obvious interest in the field of auto
electrical repairs, and his ability in that regard,
there is no
reason to reject the views of the experts that the plaintiff would
have sought to better himself and would have advanced
in his chosen
field in the matter and at the remuneration agreed between them.
[59]
I therefore accept both the quantification of plaintiff's earnings
and the agreed opinion of the expert witnesses
about his professional
advancement.
[60]
For the reasons already explained, I do not agree that a
higher-than-normal contingency should be applied
to the plaintiff's
future earnings. Given the reliance of most South Africans on road
transport in general, and on the taxi industry
in particular, there
is every likelihood the plaintiff would have continued in his chosen
field and would have advanced as predicted.
His career choice was not
dangerous or risky and will always be in demand.
[61]
I therefore agree with Mr Topping SC that it is appropriate to apply
the general guideline of 0.5% per year
of remaining employment life
as a contingency in respect of the plaintiff's future loss of
earnings claim. As the plaintiff has
38 years until the retirement
age of 65, I will apply a contingency of 19% to the future loss of
earnings claim and, in keeping
with practice, I will apply a 5%
deduction to the plaintiff’s past loss of earnings.
The
plaintiff's disability grant
[62]
The plaintiff has been in receipt of a disability grant since 2018
and, to date, has received an amount of
R166,207 from that source.
[63]
Mr Topping SC argued that this amount should not deducted from the
plaintiff's loss of earnings claim because
it was a collateral source
of income paid by the State to anyone with a disability.
[64]
As support for this argument, Mr Topping SC relied on judgement of
Moropane
v RAF
[2]
,
which came to the same conclusion.
[65]
Ms Dlamini submitted that the amount received from the disability
grant should be deducted from the plaintiff's
claim as it was
compensation arising out of his disability and relied on the
judgement of
Kapa
v RAF
[3]
.
[66]
Ms Dlamini's submissions were well made. As was stated in
Kapa
:
“
[12]
The grant is not paid to the plaintiff a result of the generosity,
benevolence or charity of the state, but as
financial assistance by
the state due to the injuries sustained which caused a loss of
income, but also in terms of the constitutional
obligation to render
social security to everyone in need of such assistance. That, is of
course, what her claim for compensation
is all about. Thus, there is
very close causal link between the reason for the disability grant
and the claim for loss of income. There
is no doubt in my mind
that the payment of the disability grant leads to double
compensation.
[13]
In addition, it must be taken into consideration that the public
carries a heavy financial burden towards
the state. The ongoing
financial woes of the RAF is notorious and well known. The funds
utilised by the RAF and the funds allocated
for social grants
originates from public by means fuel levies on the one side, and
taxes, on the other. Public policy, fairness
and justice demands that
overcompensating motor vehicle accident victims from public funds
should be avoided. Fairness and
justice demands that the
disability grant be deducted from the award to be made
.”
[67]
I agree with this reasoning and respectfully decline to follow the
judgement of
Maropane
.
[68]
In my view, the full amount received by the plaintiff from the
disability grant payments to date must be
deducted from his loss of
earnings claim.
General
damages
[69]
The plaintiff suffered life changing injuries, both physically and
mentally.
[70]
He not only lost a leg at a very young age but, because of his brain
injuries and their sequelae, he lost
the chance to follow his chosen
profession, at which he was already beginning to succeed.
[71]
The plaintiff has tried to obtain employment and to better himself,
but to no avail. According to the agreed
expert evidence, this is due
to his injuries.
[72]
Relying on cases such as
Mazibukwana
[4]
and
Mthetwa
[5]
,
Ms Dlamini that I should award general damages in an amount of
approximately R 1 million. In
Mthetwa
,
the plaintiff sustained an amputation at the knee with difficult and
painful consequences and a concussion.
[73]
Ms Dlamini rightly conceded that the plaintiff's brain injury was
more severe than a concussion, but she
argued that the amputation in
Mthetwa
was more traumatic and difficult than in the
current case.
[74]
Whilst there may be some merit in this argument, it also understates
impact and consequences of the plaintiff's
brain injury.
[75]
Mr Topping SC has relied on cases such as
WV
[6]
,
Zarrabi
[7]
and
Mnguni
[8]
to
argue that I should award general damages in an amount above R1.8
million and below R2 million.
[76]
He submits that an award of R1.9 million would be appropriate given
the plaintiff's various injuries and
their impacts.
[77]
The plaintiff's injuries are not as severe as those in
WV
where the plaintiff could not walk unaided, was permanently disabled
and could not live on his own, requiring constant supervision.
[78]
In
Zarrabi
, the plaintiff was a medical doctor who,
after suffering a severe brain injury, would only be able to manage
some form of employment
on a voluntary basis and in a sympathetic
environment.
[79]
To my mind, the plaintiff's injuries and their consequences or more
analogous to those in
Mnguni
, where the plaintiff was
awarded R1.8 million in general damages.
[80]
In my view, an amount of R1.8 million in respect of general damages
is appropriate, considering the plaintiff's
injuries and the
catastrophic consequences they wrought.
Quantification
of the plaintiff’s claim
[81]
Based on the agreements between the experts set out above, and
applying the deduction/contingencies to which
I have referred, the
plaintiff will be awarded:
81.1
R641,160 in respect of past loss of earnings (R674 905 less the 5%
deduction of R33 755);
81.2
R5,957,714 in respect of future loss of earnings (R7,355,203 less the
19% contingency totalling R1,397,489);
81.3 a
total in respect of loss of earnings of R6,432,847 (being the total
of the two amounts set out above less
the deduction of R166,027 in
respect of the plaintiff's disability grant); and
81.4
R1,800,000 in respect of general damages.
Costs
[82]
The parties agreed that costs should follow the result and given the
nature of the claim, I consider that
those costs should be taxed on
Scale C as contemplated in Uniform
Rule 69(7).
Order
[83]
I grant judgment in favour of the plaintiff and against the defendant
as follows:
1.
The defendant is directed to make payment
of the sum of R8,232,847.00 to the plaintiff in respect of his claim
for:
1.1.
loss of earnings, in the sum of
R6,432,847.00; and
1.2.
general damages, in the sum of
R1,800,000.00.
2.
Payment of the amount in paragraph 1 hereof
is to be made within 180 (one hundred and eighty) calendar days from
the date of the
grant of this order.
3.
The defendant is directed to pay interest
on the amount in paragraph 1 hereof at a rate of
11.5
%
per annum
calculated from 181 (one hundred and eighty) calendar days from the
date of the grant of this order to date of payment.
4.
The defendant is directed to make payment
of the plaintiff’s taxed or agreed party and party costs on the
scales as prescribed
in
Rule 70
and Scale C
of Rule 69 (7) of the Uniform Rules of Court, such costs to include,
but not be limited to:
4.1.
the reasonable and necessary costs of
senior counsel, including senior counsel’s reasonable costs for
his preparation for
trial, such costs to include preparation of any
written submissions, attendance at trial on 7 & 8 October 2024,
the consideration
of any settlement proposals, as well as the
reasonable costs of counsel and the plaintiff’s attorney for
attending upon any
necessary consultations with the undermentioned
expert witnesses and the plaintiff;
4.2.
the fees and expenses reasonably incurred
by the undermentioned witnesses for,
inter
alia,
the
preparation of their reports and any supplementary reports, deposing
to affidavits, joint minutes, the experts’ reasonable
qualifying fees, their reasonable reservation fees, and their
reasonable fees of attending upon any necessary consultations with
the plaintiff’s counsel and attorney to testify at the trial
(with the quantum of their fees to be determined by the taxing
master) namely: -
4.2.1.
Dr Leon Rajah, the orthopaedic surgeon;
4.2.2.
Dr Mike Du Trevou, the neurosurgeon;
4.2.3.
Dr Roseanne Hardy, the neuropsychologist;
4.2.4.
Ms Collene Kisten, the occupational
therapist;
4.2.5.
Mr Damien Askew, the orthotist and
prosthetist;
4.2.6.
Ms Karin Plaatjes, the industrial
psychologist; and
4.2.7.
Mr W Loots, the actuary (reports only).
4.3.
The reasonable attendance fees of the
following expert witnesses for their attendance at Court on 7 October
2024:
4.3.1.1.
Ms Colleen Kisten, occupational therapist;
4.3.1.2.
Ms Karin Plaatjes, industrial psychologist;
4.4.
The
reasonable travelling
expenses for the following witness for their attendance at Court on
the 7
th
& 8
th
October 2024
4.4.1.
Nkululeko Nopakela
4.4.2.
Simphiwe Mlindazwe
4.4.3.
Lizalise Noxhaka
4.5.
The
reasonable costs for the interpreter’s attendance at Court for
the trial
on 7
and 8 October 2024.
4.6.
Any and all reserved costs become costs in
the cause as set out above.
5.
The plaintiff is directed, in the event of
the aforementioned costs not being agreed to:
5.1.
serve the notice of taxation on the
defendant’s attorneys of record; and
5.2.
allow the defendant 180 (one hundred and
eighty) calendar days to make payment of the taxed costs.
6.
The defendant is directed to make the
payment of the amount referred to in paragraph 1 hereof directly to
the Trust Account of the
plaintiff’s attorneys, with details:-
ASKEW MARTIN &
ADRAIN INC. – TRUST ACCOUNT
BANK:
N[…]
BRANCH:
S[…] STREET
BRANCH CODE:
1[…]
ACCOUNT NO:
1[…]
REF:
R[…]
7.
It is recorded that the Defendant’s
link number is
4[…].
SHAPIRO
AJ
JUDGMENT
RESERVED:
8 OCTOBER 2024
JUDGMENT
HANDED DOWN: 14 OCTOBER 2024
Appearances:
For
plaintiff:
Instructed
by:
Mr
I Topping SC
Askew
Martin and Adrain Inc.
Suite
403, 4
th
Floor, FNB House
151
Musgrave Road
Berea,
Durban
Ref:
RIA/S863/Yuri/ao
Email:
sameera@askew.co.za
For
defendant:
Instructed
by:
Ms
Dlamini
Office
of the State Attorney: KZN
391
Anton Lembede Street
Durban
Ref:
Link No 4[…]
[1]
Bee
v Road Accident Fund
2018
(4) SA 366
(SCA) at paras 64-66
[2]
Unreported
decision North Gauteng High Court Case no 39680/2012 dated 27 August
2018
[3]
Kapa v
Road Accident Fund
(1414/2013) [2018] ZALMPPHC 67 (7 December 2018)
[4]
Mazibukwana v
Road Accident Fund
(41150/13)
[2016] ZAGPPHC 2 (5 January 2016)
[5]
Mthetwa v Road
Accident Fund
(2011/34424) [2012] ZAGPJHC 70 (20 April 2012)
[6]
WV
v Road Accident Fund
2019
(7A4) QOD 113 (FB)
[7]
Zarrabi
v Road Accident Fund
2006
(5B4) QOD 231 (T)
[8]
Mnguni
v Road Accident Fund
2010
(6E2) QOD 1 (GSJ)