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[2024] ZALMPPHC 179
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Mukhithi v Road Accident Fund (3864/2020) [2024] ZALMPPHC 179 (15 November 2024)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:3864/2020
(1) REPORTABLE:
YES
/ NO
(2) OF INTEREST TO
THE JUDGES:
YES
/ NO
(3) REVISED.
Signature:
Date:
15 NOVEMBER 2024
In the matter between:
MUKHITHI JOHANNES
MUKWEVHO
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MONENE
AJ
INTRODUCTION
[1] The plaintiff
instituted action proceedings against the defendant for damages
arising from a motor vehicle accident which occurred
on 30 June 2018.
The plaintiff was a driver of a motor vehicle which collided with the
motor vehicle of the insured driver, one
Mr. Makgathi Sathekge.
[2] The defendant
defended the action, in the first place denying that the accident
occurred, in the first alternative blaming the
accident on the sole
negligence of the plaintiff and in the second alternative pleading
contributory negligence.
[3] What is to be
determined before me is who is liable for the accident, the general
damages suffered by the plaintiff and the
plaintiff’s loss of
earnings if there be any as well as a future medical expenses
assurance or undertaking.
[4] To prosecute his
undefended claim for both general damages and loss of earnings the
plaintiff sought this court’s leave
to invoke uniform rule
38(2) and thus proceed to lead evidence under cover of affidavit.
Such leave was granted as sought by this
court. However, as regards
liability the parties led oral evidence, with the plaintiff leading
two witnesses and the defendant
only one.
THE DEFENDANT’S
POINTS IN LIMINE
[5] In its amended plea
the defendant prefixed its plea over with two special pleas
challenging the availability of general damages
to the plaintiff in
casu, to wit:
5.1 That the plaintiff
had not timeously claimed general damages as this head of damages had
appeared in neither the RAF 1 form
nor the initial pre-amendment
particulars of claim in circumstances where the addition of general
damages was done outside three
years and had thus “prescribed”.
5.2 That the plaintiff’s
general damages claim was non-compliant with regulatory instruments
in that it offends section 24(6)(a)
of the Road Accident Fund 56 of
1996 to the extent that 120 days had not lapsed from the lodgment
date of the claim to the issuing
of summons.
[6] Upon being addressed
by both counsel on the points
in limine
which in effect were
argued as one, I promptly dismissed them on attenuated reasons about
which I further briefly outline as follows:
6.1 It
is not our law that if a party does not list a particular head of
damages at lodgment of a claim or subsequent pleading,
such a claim
as it arises from the same facts or cause of action prescribes as
separate from other claims or the main cause of
action. In
Nonkwali
v Road Accident Fund (105/2007)
[2008] ZASCA 3(6 March 2008)
the
SCA per Maya JA (as she then was) clarified this point as follows:
“
Authorities
are legion to the effect that a
plaintiff who claimed for damages sustained as a result of wrongful
and negligent driving under
the Act’s predecessors had but a
single, indivisible cause of action and that the various items
constituting the claim were
thus not separate claims or separate
claims or separate causes of action. The interpretation, in my view,
necessarily extends to
claims brought under the Act as it has the
same objective and effect as these previous statutes.
The effect of this
finding cannot be articulated better than Corbett JA did in Evins v
Shield Insurance Co Ltd 1980(2) SA 814(A)
at 836 C-E. There, the
court dealing with the concept of a single cause of action in the
context of prescription with regard to
the amendment of a plaintiff’s
claim as originally pleaded by him, said: ‘Where the plaintiff
seeks by way of an amendment
to augment his claim for damages, he
will be precluded from doing so by prescription if the new claim is
based upon a new cause
of action and the relevant prescriptive period
has run, but not if it was part and parcel of the original cause of
action and merely
represents a fresh quantification of the original
claim or the addition of a further item of damages.”
6.2 Quite clearly
therefore it is the cause of action which may prescribes and not
further quantifications or additional claims
arising from the same
cause of action. The cause of action is one and is indivisible for
prescription purposes and portions thereof
cannot be excised and be
said to have prescribed when the cause of action to which they belong
has not prescribed.
6.3
The section 24(6) (a) portion of this point
in
limine
taken by the defendant, even
though incongruously stated and devoid of meaning as articulated
should, in my view, also fall on
the same indivisibility sword
referred to supra in
Nonkwali
as well as to the clear wording of
that section which is not peremptory but merely directory such that
substantial compliance should
be enough to help a claim escape
fatality.
6.4 Worse still, the
defendant has on the papers before me, already made an offer for
general damages, albeit that it was not accepted
by the plaintiff.
This on its own completely defeats the defendant’s
non-availability of general damages stance on whatever
footing as the
defendant cannot approbate and reprobate at the same time by denying
the existence of general damages while making
an offer in regard
thereto.
[7] It was for the above
reasons that this court dismissed the points in limine raised by the
defendant which points, in my view,
were reflective of nothing less
than hapless clasping at straws.
LIABILITY(MERITS)
[8] In testifying before
the court on liability the plaintiff stated that he was on 30 June
2018 at around 20h00 driving a white
Polo Vivo motor vehicle on the
Mmarobala to Tibane road when the insured driver’s mini-bus or
“taxi” motor vehicle
drove from opposite the direction he
was going and encroached onto his lane and collided with his motor
vehicle. He stated that
the minibus had only one headlamp on at the
time of the collision and blamed the entire accident on the
negligence of the minibus
driver.
[9] The plaintiff then
called, as a second witness, his brother Mr. Ralefatane who testified
that he was a passenger in the front
passenger seat of the plaintiff
at the time of the collision. He corroborated the plaintiff on the
version that the minibus approached
the plaintiff’s motor
vehicle from the front and that it only had “one eye”,
that is, only one of its headlamps
was on. He could not speak to the
encroachment of the insured driver into the plaintiff’s lane as
testified to by the plaintiff.
[10] For its part, the
defendant called Mr. Sathekge, the insured driver who testified that
the collision happened the plaintiff’s
motor vehicle while
trying to avoid a collision with another car, an Isuzu bakkie, rammed
into his minibus. He denied that his
minibus had “one eye”.
He countered the plaintiff’s version that he encroached into
the plaintiff’s lane
and thus denied any negligence on his
part, averring that it was the plaintiff who was solely responsible
for the collision.
[11] It is correct as
pointed out by Mr. Phaswana, counsel for the defendant, that the
plaintiff did not dispute that he had, at
the time of the accident,
been driving at a speed of 20 above the 60 km per hour regulated for
the scene of the accident.
[12] The speed alone
points, in my view, to some contribution by the plaintiff to the
negligence behind the accident.
[13] It being so that the
versions of the plaintiff and the insured driver are mutually
exclusive of each other and nothing else
helps to untie that knot, I
must tilt the scales in the plaintiff’s favour on account of
the following considerations:
13.1 The plaintiff’s
version on a key and germane aspect of negligence in this matter, to
wit, the one headlamp on, is corroborated
by his passenger and was
not scathed by any cross-examination. It is not a recently fabricated
version as it has been there from
both witnesses from the beginning
as per their initial accident statements.
13.2 This court was
generally not impressed by the insured driver’s evidence who
appeared uncertain of the events of the day
and exaggerated his
answers.
13.3 The attitude of the
defendant in pleading first that there was no accident and then that
there was contributory negligence
does not sit well with this court
as it is reflective of a litigant treating a trial as a fishing
expedition which, for this court,
dents credibility.
[14]
The test on contributory negligence is, in my view, best captured in
the following words from
Ntsala v
Mutual & Federal Ins Co Ltd 1996(2) SA 184(T) 190
:
“
I
am satisfied that the onus rests throughout on the plaintiff to prove
negligence on the part of the defendant. Once the plaintiff
proves an
occurrence giving rise to an inference of negligence on the part of
the defendant, the latter must produce evidence to
the contrary: he
must tell the remainder of the story, or take a risk that judgement
be given against him.”
[15] It thus is, in my
view, so that the onus to prove contributory negligence and its
extent is on the defendant. In casu, all
that was proven against the
plaintiff was that he drove at a speed of 20 above the speed limit of
the area. The balance of the
negligence involved in the matter
appear, on the evidence led before me, to be with the insured driver.
[16] Following upon a
question posed by the court as to whether the insured driver in
casu
had not himself lodged a claim with the defendant and some kind of
reversed roles where the plaintiff in casu would have been the
insured driver, counsel for the defendant informed this court, in his
heads of argument, that the insured driver had indeed had
his claim
settled on an 80/20 percent apportionment in his favour. I do not
know what evidence was led in the other matter and
how it was led. I
am unable to take anything that allegedly happened in the other
matter under consideration as such was not tendered
as evidence to
me. Even if evidence led before the other court was presented to me
it would still have had to be assessed and evaluated
together with
what was led before me. The question of which matter happened to be
settled before another would, in my view, be
an unhelpful and unfair
exercise akin to the biblical pool of Siloam into which the first to
jump in was the only one advantaged.
Suffice to say that this
situation presents an anomaly whose curing is urgent but can only
become to be addressed by a vigilant
and less supine defendant who
should be able to identify such matters and perhaps ensure that they
are heard simultaneously or
jointly in some way. One wonders exactly
how many of this kind of matters are out there where parties have
exchanged roles to both
benefit from the fund in a manner which is
clearly untenable. Something must give. We cannot continue to have
saints and devils
conveniently exchanging roles so easily and call
that justice.
[17] Back to the matter I
am seized with and solely on the evidence led before me, I find that
all things considered, the merits
or liability in this matter must be
apportioned 70/30 percent in favour of the plaintiff.
GENERAL DAMAGES
[18] I am persuaded that
on account of the common cause fact that the defendant did make an
offer on general damages to the plaintiff,
this court’s
jurisdiction to determine general damages is engaged because such an
offer, although rejected by the plaintiff,
means that the defendant
has accepted the seriousness of the injuries sustained by the
plaintiff.
[19]
In
Chetty v Road Accident
Fund(A91/21)[2021] ZAGPPHC 848(7 December 2021) at paras 19 to 20
the court, after reflecting on what the SCA had
stated on regulation 3 of the Regulations arising from Act 56 of 1996
in
Road Accident Fund v Duma, Road
Accident Fund v Kubeka, Road Accident Fund v Meyer, Road Accident
Fund v Mokoena[2012] ZASCA 169
at para 19
to
the effect that it is the defendant and not the court which must be
satisfied about the seriousness of an injury for general
damages
purposes, stated as follows:
“
Faced
with uncertainty in respect of whether the Fund accepted the
plaintiff’s serious injury assessment form or not, I requested
the plaintiff’s counsel to file supplementary heads to address
us on this aspect. Counsel for the plaintiff duly filed the
heads and
we are indebted to him. It appears from the supplementary heads that
the Fund had offered an amount as compensation for
general damages
and therefore we are satisfied that the Fund had accepted the
plaintiff’s injury as serious.
The court a quo was
therefore correct in dealing with the issue of general damages.”
[20] The injuries
suffered by the plaintiff have been testified to, under cover of
affidavit in terms of uniform rule 38(2) by Dr
Lou van Wyk, the
Orthopaedic Surgeon, as being the following:
20.1 Traumatic mild head
injury.
20.2 Severe lower back
injury.
20.3 Cervical spine
subluxation at C4 and C5 with a unifacet dislocation
20.4 Subluxation with
fractures of the facets at C6 and C7.
20.5 Soft tissue chest
injuries
20.6 Cervical vertebral
subluxation of C6 and 7.
[21] Arguing for general
damages in the amount of R700 000.00 the plaintiff referred me,
inter alia, to the following comparative
authority:
21.1
Mbalathi v Road Accident Fund [2017]
ZAGPPHC 951;
[2019] JOL 41449
(GP)
where
debilitating injuries to the T10 and L1, rib fractures at rib 9 and
11 and a pneumothorax to a 22-year-old attracted an award
of
R450 000.00 equivalent to R773 864.00 currently.
21.2
Oosthuizen v RAF 20-16(7C4) QOD(GNP)
where a 24-year-old had, in 2016,
been awarded R 520 000.00 arising from a compression fracture of
the L3 vertebral area which
currently equates to R750 000.00.
21.3
Mohale v RAF 2015 (7A4) QOD 15 GNP
involving a brain and neck injury
which saw the plaintiff therein compensated at R650 000.00 in
2015 which amount equates to
R948 181.00 this today.
[22] I need not belabor
the obvious debilitating sequelae of continued pain and loss of
amenities of life attendant to the injuries
suffered by the plaintiff
in casu, particularly the spine, back and neck injuries.
[23] Taking guarded
counsel from the above comparative authorities within an
understanding of the trite principle that previous
awards are not to
be slavishly followed, I have no hesitation in finding the amount
suggested by the plaintiff as fair for general
damages to be fair and
reasonable in the circumstances and am inclined to so order.
LOSS OF EARNINGS
[24] Pursuant to
quantification of loss of earnings the following evidence was led by
the plaintiff under cover of affidavit:
24.1 Dr. Manesh Pillay
the neurologist found the plaintiff to have suffered no significant
neurological injuries.
24.2 The occupational
therapist, Elsabe Krone opined that owing to the Whole-Body
Impairment of 15 percent as determined by the
Orthopaedic Surgeon the
plaintiff suffered from continuous pain and fatigue which would
occupationally call for him to be accommodated
with intermittent
short breaks from any workday. The plaintiff was regarded by this
expert to have suffered physical deficiencies
which rendered him to
be an unequal competitor in the open labour market.
24.3 Karin Pulles, the
plaintiff’s industrial psychologist, observed that at the time
of the accident the plaintiff was employed
as a truck driver on a
one-year contract having previously worked in various other driving
jobs. He was earning R8999.99 per month.
This witness noted further
that, post the accident, the plaintiff had returned to work for about
three months only to see his contract
terminated. However, he has
since, it was noted by this expert, managed to secure a similar
driving job at R2 775.15 per week.
24.4 The industrial
psychologist determined that past loss of income should be computed
from 1 August 2018 to 24 October 2018 at
R11 019.11 per
month.
24.5 Informed in the main
by the industrial psychologist’s report which had been fed into
by the other expert reports Gregory
Angus Whittaker, an actuarial
scientist, postulated a gross loss of earnings at R1 308 075.00
having factored contingencies
at 5 percent for past loss and 15
percent on future loss of income. uninjured income
[25]
It is trite that the principle underlying our law on compensation in
Road Accident Fund matters is that the plaintiff who has
been harmed
by the negligence of an insured driver must, as far possible, be
placed by a compensation award given, in the position
such a
plaintiff would have, but for the injuries suffered, been. Trite as
that principle is, I cannot resist the temptation to,
in that regard,
defer to the time-tested counsel of Rumpff J in
Dippenaar
v Shiel Insurance Co Ltd 1979(2) 904(A),
which
went this way:
“
In
our law, under the lex Aquilia, the defendant must make good the
difference between the value of the plaintiff’s estate
after
the commission of the delict and the value it would have had if the
delict had not been committed. The capacity to earn money
is
considered to be part of a person’s estate and the loss or
impairment of that capacity constitutes a loss, if such loss
diminishes the estate.
”
[26]
In so far as this court is concerned, the approach in assessing loss
of earnings can, in this court’s view, be put no
better than it
was stated in
Southern Insurance
Association v Bailie v NO 1984(1) SA 98(A) at 112E-114F
where the following was stated:
“
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, augururs 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 y 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.”
[27] I am not inclined to
deviate from the uncontested expert evidence tendered before me, more
so the actuarial computations. To
so deviate I would need something
better or a counterview or at least a reasoned view that the expert
evidence led is irrational
or otherwise not to believed for another
reason. All that is lacking in casu. I thus cannot fault any of
the experts in casu
in any manner.
[28] In his heads of
argument counsel for the plaintiff intimated that in the light of the
plaintiff’s age at 40 years, who
was 34 at the time of the
accident, and postulating his year of retirement at 65 years added to
unknown future circumstances the
pre-morbid 15 percent contingency
deduction done is fair and reasonable. I agree.
[29] I was further
invited by the plaintiff’s counsel to, in the backdrop of the
occupational therapist’s expert recommendation,
that a higher
than normal post-morbid be applied, a 35 percent contingency
deduction on post morbid future loss of income be factored
in. This,
it was submitted by counsel in his written submissions, is premised
on an educated guess that the plaintiff may in the
future remain
unemployed for long periods with the possibility of securing short
intermittent contracts, which may be few and far
in between on a
lower income level. I find that reasoning persuasive.
[30] Arguing on the
plaintiff’s expert reports, as none were forthcoming from the
defendant, counsel for the defendant, Mr.
Phaswana, submitted that
instead of a 35 percent on post-morbid future loss he would have
preferred a contingency deduction of
between 20 and 30 percent. While
I appreciate that a percentage of 20 to 30 percent is also higher
than normal, I restate that,
for reasons already advanced above, a 35
percent deduction is fairer and more reasonable.
[31]
In rands and cents the total loss of earnings prayed for by the
plaintiff and which I am inclined to award is
R1 758 289.05
.
[32]
When the gross loss of earnings amount determined immediately above
is added to the
R700 000.00
for general damages a sum of
R2 458 289.05
as total damages suffered by the plaintiff
results. From that, 30 percent apportionment arising from this
court’s determination
of liability supra must be subtracted
resulting in R1 720 802,33.
FUTURE MEDICAL CARE
[33] According to the
Orthopaedic Surgeon there is a need for extensive surgery to be
performed on the plaintiff in the future as
well as physiotherapy,
more consultations and medication.
[34] According to the
Occupational Therapist the plaintiff will need assistive devices such
as a shower stool, pedestal stool and
a small two-wheel trolley for
shopping and work.
[35] A case for an
undertaking for future medical care has, in my view, been made.
ORDER
[36] Premised on all the
above, I make the following order:
[36.1] The defendant
shall be liable 70/30 percent for damages suffered by the plaintiff
arising from the motor vehicle accident
of 30 June 2018
[36.2]
The defendant shall pay an amount R 1 720 802.33 (
ONE
MILLION SEVEN HUNDRED AND TWENTY THOUSAND EIGHT HUNDRED AND TWO RAND
AND THIRTY-THREE CENTS)
to the
plaintiff in respect of total damages suffered by the plaintiff
arising from a motor vehicle collision of 30 June 2018.
[36.3] The said amount
mentioned in 33.2 above shall within 180 days of this order being
granted be paid by direct transfer into
the following trust account:
ACCOUNT HOLDER:
BADENHORST ATTORNEYS
BANK
: ABSA BANK
TYPE OF ACCOUNT
: TRUST
ACCOUNT NUMBER
: 4[...]
BRANCH CODE
: 632005
REFERENCE NUMBER:
NATALIE/DER 1/O771
[36.4]
The defendant shall pay the plaintiff’s taxed or agreed to
party and party costs on a high court scale which costs
shall include
the costs attendant to obtaining expert reports and the costs of
counsel on
scale B
[36.5] Should the
defendant fail to pay the amount in 33.2 above within the 180 days
and/or the agreed to or taxed costs within
30 days of taxation and/or
agreement; the plaintiff shall be entitled to recover interest
thereon on the prescribed rate of interest
from the date of mora to
date of final payment.
[36.6] The defendant is
ordered to, within 14 days of this order, furnish the plaintiff with
an undertaking in terms of section
17(4)(a) of the Road Accident Fund
Act in respect of which all future medical expenses of the plaintiff
arising from the injuries
and sequalae of the accident of 30 June
2018 shall upon proof be paid by the defendant.
MALOSE S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard on
:
16 July 2024
Judgment delivered
on
: 15 November 2024
For the
Plaintiff :
Adv. JRF Ernst
:
Instructed by Badenhorst Attorneys
:
Tel: - 015 296 4063
:
Email: lit1@badenhorstlaw.co.za
For the
Defendant :
Mr K Phaswana
:
Instructed by Office of the State Attorney, Polokwane