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2024
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[2024] ZAMPMBHC 81
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Gwebu v Road Accident Fund (2309/2023) [2024] ZAMPMBHC 81 (15 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
Case
Number: 2309/2023
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHERS JUDGES: YES/
NO
(3)
REVISED
SIGNATURE
DATE:
15/11/2024
In
the matter between:
GWEBU,
NOKUTHULA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
This judgment was handed down
electronically by circulation to the parties and/or parties’
representatives by email. The date
and time for hand-down is deemed
to be 15 November 2024.
JUDGMENT
COETZEE,
AJ
INTRODUCTION
:
[1]
This is a third-party claim against the Road Accident Fund wherein
the Plaintiff claims damages
resulting from injuries sustained in a
motor vehicle collision on the 8
th
of May 2022. At
the time of the collision, the Plaintiff was 31 years old and working
as a traditional healer; she is now
33 years old. The Defendant has
previously conceded liability, agreeing to compensate the Plaintiff
for 100% of her proven or agreed
damages. The Defendant has also
offered to provide the Plaintiff with a statutory undertaking for
future medical expenses, in accordance
with
Section 17(4)(b)
of the
Road Accident Fund Act 56 of 1996
. The matter proceeded only on
the quantum portion of the claim.
EVIDENCE
:
[2]
The Plaintiff presented the evidence of two factual witnesses, the
Plaintiff herself and Ms. Eunice
Mhlanga, as well as two expert
witnesses: Ms. Lesley Taylor (Occupational Therapist) and Ms. Melissa
du Plessis (Industrial Psychologist).
The reports of Dr. P.
Engelbrecht (Orthopaedic Surgeon), Dr. G.A. Greyvensteyn (Plastic and
Reconstructive Surgeon), Dr. C.F. Hoogendijk
(Maxillofacial and Oral
Surgeon), Dr. J.A. Smuts (Neurologist), Dr. D. Van Der Westhuizen
(Ophthalmologist), Johan Sauer (Actuary),
and Lindsey Hyson (Clinical
Psychologist) were admitted as evidence, with the Defendant conceding
the content of these reports.
The Plaintiff also submitted an
affidavit detailing her earnings. The Defendant did not call any
expert witnesses and closed its
case without leading further
evidence.
ISSUES
IN DISPUTE
:
[3]
The issues in dispute concern the Plaintiff’s loss of earnings,
specifically her income
as a traditional healer and her alleged
self-employment as a caterer and the amount to be awarded for general
damages. There is
contention regarding the amounts presented in the
Industrial Psychologist's report, which details the Plaintiff’s
monthly
and annual earnings. Further, there is a dispute about
whether the catering business was operational at the time of
assessment
by the occupational therapist or if it was merely a future
plan.
[4]
The Plaintiff contented that the collision has significantly impaired
her ability to perform her
duties as a traditional healer due to a
loss of smell and taste, faculties essential to her profession, and
that her catering business
was disrupted as a result of her
injuries. The Defendant disputed the Plaintiff’s claims
regarding her earnings and
the extent of her alleged loss of income.
Specifically, the Defendant challenged the factual foundation and
assumptions made
in the reports of Ms. Taylor (Occupational
Therapist) and Ms. du Plessis (Industrial Psychologist), contending
that the Plaintiff’s
traditional healing practice was already
in decline prior to the collision, as evidenced by reduced income in
2021, and furthermore,
that the Plaintiff’s catering business
was merely a prospective venture that had not been realized at the
time of the collision.
COMMON
CAUSE FACTS
:
[5]
The Plaintiff’s sustained severe trauma during the collision.
The injuries include
a frontal bone fracture with pneumocephalus,
left orbital wall fracture, left zygoma fracture, cerebral oedema,
midlung contusion,
severe facial lacerations, and bilateral femur
fractures.
[6]
Following the collision, the Plaintiff was hospitalized and initially
treated conservatively for
a head injury. Maxillofacial surgeons
performed open reduction and internal fixation on her facial bones,
while her right femur
was stabilized with an intramedullary nail and
locking screws. Her left foot, which sustained a degloving injury,
underwent debridement
followed by vacuum-assisted closure (VAC)
dressings. Facial lacerations were also debrided and sutured.
Additionally, the Plaintiff
received psychological treatment.
[7]
According to Dr. P.R. Engelbrecht (Orthopaedic Surgeon), the
Plaintiff suffers from multiple ongoing
complaints: she has lost her
left eye and bears extensive scarring on the left side of her face.
She also has left-sided facial
nerve palsy, which affects her ability
to eat and drink, causing fluids to dribble from the left side of her
mouth. The Plaintiff
experiences weekly headaches, reports a decline
in memory and continues to require regular dressings for her left
foot due to incomplete
healing. She reported persistent pain in her
right thigh and occasional pain in her right knee, with her walking
ability now limited
to 30-45 minutes. She requires daily analgesics
to manage pain in her lumbar spine and continues to experience facial
asymmetry
and extensive facial scarring. Additionally, she
exhibits sequelae from a head injury, as well as soft tissue injuries
to
the cervical and lumbar spine.
[8]
Pain from the accident has followed a trajectory from acute pain for
approximately ten days post-collision,
to moderate pain over the next
four weeks, and now persists as chronic pain due to the hypertrophic
non-union of the right femur
fracture and an extensive area of
ulceration on her left foot. Since the accident, the Plaintiff has
led a sedentary lifestyle
and suffers a significant reduction in her
work capacity. She will require substantial future medical treatment,
including both
conservative care and additional surgical
interventions.
[9]
Dr. G.A. Greyvensteyn (Plastic Surgeon), concluded in his report that
the Plaintiff’s facial
scarring prevents her from consulting
directly with clients, which directly impacts her income.
Furthermore, due to trauma to her
lower leg, she is unable to collect
herbs in the bush as she previously did, as movement now causes her
significant pain and difficulty.
While scar revision surgery may
improve the quality of the facial scar, the Plaintiff will
nonetheless retain a visible scar extending
from her right forehead
to her left mandibular border, which cannot be concealed, even with
make-up. Dr. Greyvensteyn noted that,
from a plastic surgery
perspective, conservative management would not yield any improvement
in her cosmetic appearance.
[10]
Dr. C.F. Hoogendijk (Maxillofacial and Oral Surgeon), opined that
from a maxillofacial and oral surgery perspective,
no occupational
disability is anticipated. However, he noted that the Plaintiff
should be assessed by an ophthalmologist regarding
the loss of her
left eye, which constitutes a permanent disability.
[11]
Dr. J.A. Smuts, a neurologist, provided a comprehensive opinion
regarding the Plaintiff’s neurological
injuries, concluding
that she sustained a significant concussive head and brain injury
with probable diffuse axonal damage. Dr.
Smuts opined that this
trauma is likely to have impaired the Plaintiff’s cognitive and
functional capacities. He reported
the Plaintiff’s complaints
of persistent post-traumatic headaches, memory deficits, and
personality alterations, and noted
an increased risk of epilepsy in
the future as a direct consequence of these injuries. Dr. Smuts
expressed the view that
the collision adversely affected the
Plaintiff's personality, observing that her memory impairment may be
more pronounced than
she perceives, warranting further evaluation by
a psychologist or psychiatrist. He attributed both her memory loss
and personality
changes to the brain trauma sustained in the
accident. Additionally, he observed that the Plaintiff suffers from
anosmia and ageusia,
which he considers permanent and irreversible.
Considering her neurological condition, Dr. Smuts concluded that the
Plaintiff is
unlikely to achieve the level of cognitive and
functional performance she might have attained but for the accident.
He advised
that, given her potential cognitive and emotional
disabilities, protective measures for her financial assets should be
considered.
While Dr. Smuts suggested that a trust might be an
appropriate mechanism, he deferred to the court’s discretion on
this matter.
[12]
Dr. D. Van Der Westhuizen (Ophthalmologist), concluded that the
Plaintiff’s injury resulted in the
loss of her left eye, with a
poor prognosis. Consequently, she has lost stereopsis, requiring
reliance on other depth perception
cues for spatial assessment. Dr.
Van Der Westhuizen further noted that the Plaintiff will not be able
to obtain a Professional
Driving Permit (PDP) and will be unable to
work at elevated heights.
[13]
Lindsey Hyson, a clinical psychologist, reported that the Plaintiff
sustained a significant head injury accompanied
by chronic pain and
physical disability, which has detrimentally affected her
independence, mood, cognitive function, and overall
quality of life.
This type of injury, according to Ms. Hyson, is anticipated to result
in lasting neuro-physical challenges, consistent
with the
neuropsychological assessment findings. Ms. Hyson explained
that individuals experiencing chronic pain are at triple
the usual
risk of developing psychiatric symptoms, mood, or anxiety disorders,
while those suffering from depression face a similarly
increased risk
of chronic pain. From a psychological standpoint, the Plaintiff’s
pain is expected to impair her motivation
and reduce both physical
and mental endurance. Neuropsychologically, even if employed in
sedentary work, the Plaintiff’s
cognitive impairments are
likely to impact her performance and hinder her ability to compete
fairly in the open labour market.
Given the combined impact of
her physical and neuro-cognitive impairments, Ms. Hyson concluded
that the Plaintiff is at a disadvantage
as a prospective employee,
struggling to compete equally with other candidates. Furthermore, she
noted that the Plaintiff’s
pain, injuries, and scarring serve
as persistent reminders of the trauma and the life she has lost, with
severe facial scarring
likely to further impede her competitiveness
across job sectors.
SUMMARY
OF ORAL EVIDENCE
:
Evidence
of the Plaintiff
:
[14]
The Plaintiff confirmed the content of her affidavit dated 26 July
2023 and testified that she has been practicing
as a traditional
healer since 2012. She explained that being a traditional healer
requires sensitivity and the ability to receive
and interact with
clients appropriately. This involves undergoing specific rituals,
such as the dancing ritual, and training in
identifying and using
traditional fruits for various rituals and treatments, which
necessitates the ability to smell and taste
these fruits.
[15]
She testified that due to the collision, her sense of smell and taste
has been impaired, which severely impacts
her ability to perform her
work as a traditional healer. She indicated that she can no longer
independently identify or mix traditional
items and now requires
assistance to fulfil her duties. She also confirmed that she trained
others in initiation rituals, explaining
that clients approach her
for initiation based on their needs, and she performs rituals
accordingly.
[16]
During cross-examination, the Plaintiff was
questioned about her involvement in a catering business, which
she
had previously described to the occupational therapist, Ms. Taylor,
as a prospective venture. The Plaintiff testified that
she had
partnered with her sister in this business but discontinued her
involvement after the accident. When pressed on why she
had not
disclosed this business during her assessment with Ms. Taylor, the
Plaintiff maintained that she believed she had informed
all relevant
parties of her intentions to pursue the catering venture.
[17]
The Plaintiff was further cross-examined regarding
her income derived from initiation rituals. She testified
that
between 2018 and 2022, she initiated multiple clients: seven in 2018,
four in 2019, and two in 2020. The Plaintiff explained
that clients
do not pay the full initiation fee upfront, and she was unable to
provide documentary proof, such as bank statements,
to verify the
amounts received. She attributed the decline in clients during 2020
to the COVID-19 pandemic and clarified that the
reduction in 2021 was
due to personal circumstances unrelated to the collision, which
occurred after the relevant period.
[18]
With respect to her income, the Plaintiff stated
that she lacked documentary evidence to support her earnings
claims.
She testified that her annual income amounted to R51 600.00 from
the catering business and R72 000.00 from traditional
healing
services. Additionally, she charged approximately R22 000.00
per client for initiation rituals, estimating that
she had about
three clients per year.
[19]
When questioned about inconsistencies in her
reported earnings to Ms. Taylor and Ms. du Plessis, particularly
regarding the initiation fees, the Plaintiff acknowledged that the
amounts charged could vary and that R22 000.00 was not
a fixed
fee. She admitted that she had not obtained any corroborative
affidavits or written confirmation from clients to substantiate
the
amounts allegedly received. She also testified that she did not
have a bank account prior to the collision and had only
recently
opened one, thereby limiting her ability to provide documentary
evidence of her income.
[20]
The Plaintiff confirmed that she began receiving a
disability grant in March or April 2022. A letter from
the South
African Social Security Agency (SASSA), dated 21 September 2022,
confirmed an initial payment of R2,640 for October 2022,
followed by
a monthly grant of R1,980.00.
[21]
Finally, the Plaintiff conceded that her memory,
particularly concerning dates and figures, had been impaired
since
the collision. She suggested that this cognitive difficulty might
account for discrepancies in her evidence.
Evidence
of Me Eunice Mhlanga
:
[22]
Ms. Eunice Mhlanga testified that she was trained as a traditional
healer by the Plaintiff in 2015. She stated
that for a complete
initiation process, she charges clients an amount of R21 000.00.
In addition, she charges R6 000.00
for performing house
strengthening or protection rituals.
Evidence
of Lesley Taylor (Occupational Therapist)
:
[23]
Ms. Taylor testified that the Plaintiff’s occupation as a
traditional healer, according to the Dictionary
of Occupational
Titles, falls into the medium strength category. This
classification is due to the physical demands of sourcing
medicinal
plants and herbs in the bush, which the Plaintiff is now struggling
to perform. The therapist concluded that the
Plaintiff should
be restricted to sedentary or light work because of her orthopaedic
injuries, which prevent her from engaging
in activities such as
walking long distances, climbing, squatting, or crouching, all of
which are required in her traditional healing
duties.
[24]
Ms. Taylor further opined that if the Plaintiff continues in
physically demanding work, it could hasten degenerative
changes,
leading to early retirement, possibly around age 55. The Plaintiff,
with only a Grade 9 education, will face difficulty
competing in the
general job market, potentially forcing her to continue in physically
demanding roles, which would aggravate her
injuries.
[25]
Ms. Taylor also addressed the Plaintiff’s significant pain,
particularly in her left foot and lower
back, which affects her daily
functioning and ability to work. Additionally, the Plaintiff’s
facial scarring, including damage
to her eye, would likely hinder her
chances of obtaining employment, even impacting her work as a
traditional healer due to its
unsightly nature.
[26]
Ms. Taylor observed that, following the collision,
the Plaintiff has become dependent on her elderly mother
for
assistance in obtaining clients and conducting traditional
ceremonies. The Plaintiff’s sense of smell and taste, both
critical to her ability to mix and identify herbs, have been
impaired, further hindering her capacity to perform her duties. Ms.
Taylor opined that the combined impact of the Plaintiff’s
physical and emotional injuries has substantially diminished her
motivation to continue working.
[27]
In her report, Ms. Taylor noted that the Plaintiff
expressed an intention to establish her own catering
business, with
plans to hire staff to assist her. Ms. Taylor testified that the
catering industry falls within the category of
medium physical work,
which would likely pose significant challenges for the Plaintiff
given her current physical limitations.
She would have trouble with
tasks requiring prolonged standing, cooking, and handling heavy pots,
necessitating the employment
of staff to support her in these
activities.
[28]
During cross-examination, Ms. Taylor confirmed
that the Plaintiff reported earning between R2 500.00 and
R5 000.00
per month from her work as a traditional healer, based on information
directly provided by the Plaintiff. Ms. Taylor
was not made aware of
the Plaintiff being engaged in any other occupation at the time of
the accident, aside from her role as a
traditional healer. It was Ms.
Taylor's understanding that the Plaintiff’s catering business
was merely a prospective venture
and not an existing business at the
time of the assessment.
[29]
In conclusion, Ms. Taylor emphasized that the Plaintiff’s
multiple injuries, including orthopaedic,
head, and eye injuries,
combined with her limited education and physical constraints, render
her largely unemployable, forcing
her to rely on informal work, such
as traditional healing, where her ability to compete is already
significantly compromised.
Evidence
of Melissa du Plessis (Industrial Psychologist)
:
[30]
Ms. du Plessis confirmed the contents of her report. When asked about
her perception of the Plaintiff’s
type of work before and after
the accident, she stated that the Plaintiff had been working
primarily as a traditional healer and
supplemented her income with
catering services on the side. Post-accident, the Plaintiff continued
to work as a traditional healer,
but with limited capacity and not to
the same extent as before the accident.
[31]
Regarding the Plaintiff’s catering activities, Ms. du Plessis
opined that the catering was secondary
and served as a means of
supplementing her income while she built her traditional healing
practice. She observed that while the
Plaintiff was primarily focused
on her work as a traditional healer, the catering business helped
sustain her income during the
growth phase of her traditional healing
practice.
[32]
Pre-morbidly, Ms. du Plessis noted that the Plaintiff began her
catering business in 2017, several years
after she had started her
traditional healing practice in 2012. Ms. du Plessis indicated that
as Ms. Gwebu’s traditional
healing business expanded, as
anticipated, the Plaintiff might have been less likely to maintain
her catering services, given the
increased demands on her time. This
would have been the natural progression as the business grew and her
mother's clients potentially
transferred to her.
Pre-morbid
earnings
:
[33]
With regard to the Plaintiff’s earnings, Ms. du Plessis
confirmed that pre-morbid, the Plaintiff earned
approximately
R51 600.00 annually from catering and about R138 000.00
annually from traditional healing. When asked
to explain her
methodology, Ms. du Plessis stated that the Plaintiff had provided a
range for her traditional healing earnings,
which were between
R4 000.00 and R8 000.00 per month. Using an average of
R6 000.00 per month, this was multiplied
by 12 to arrive at
R72 000.00 per annum. Additionally, for initiation ceremonies,
the Plaintiff provided a breakdown of her
charges, which amounted to
R22 000.00 per client. Based on the number of clients initiated
between 2018 and 2022, Ms. du Plessis
took an average of three
clients per year, resulting in the total of R138 000.00 from
traditional healing.
[34]
Ms. du Plessis also explained that her calculations accounted for the
impact of external factors, such as
the COVID-19 pandemic, which
affected the number of clients during 2019-2021. She took a
conservative approach in averaging the
number of clients initiated
over five years, considering that there were several factors that
could have influenced the Plaintiff’s
business, including
economic conditions.
[35]
Ms. du Plessis stated that while there is some uncertainty regarding
the future trajectory of the Plaintiff’s
earnings, she believes
the figures used are fair and conservative estimates. She further
explained that her analysis compared the
Plaintiff’s earnings
to general earnings assumptions for semi-skilled workers, and she
also considered industry benchmarks
for traditional healers, noting
that top quartile earnings for traditional healers could be as high
as R290 000.00 annually.
However, given the uncertainties and
the Plaintiff’s relatively young age at the time of the
collision (31 years old), Ms.
du Plessis chose a conservative
estimate that assumes modest growth in income, adjusting for
inflation rather than assuming a steep
upward trajectory.
[36]
This approach, according to Ms. du Plessis, accounts for the
possibility that if the Plaintiff had taken
on more of her mother's
clients, her income from traditional healing could have increased,
while her reliance on supplementary
income from catering would likely
have diminished. Nonetheless, the projections are based on
maintaining a reasonable, conservative
estimate to reflect the
uncertainties in her future earnings potential.
[37]
During cross-examination, Ms. du Plessis was questioned on
discrepancies in the Plaintiff’s reported
earnings to Ms.
Taylor, specifically regarding figures and dates. Ms. du Plessis
explained that due to memory difficulties highlighted
by various
specialists, the Plaintiff often struggled to recall precise amounts.
As a result, the expert employed a range-based
approach,
averaging the figures provided by the Plaintiff to estimate earnings.
Post-morbid
earnings
:
[38]
Ms. du Plessis outlined two scenarios regarding the Plaintiff’s
post-morbid earnings. In the
first scenario, with optimal
rehabilitation, the Plaintiff was projected to continue working at
her reduced capacity until age
55, in accordance with the
occupational therapist's opinion. It was noted that the Plaintiff’s
mother, who had been assisting
her with certain tasks, may soon be
unable to help due to her advanced age. This would likely aggravate
the Plaintiff’s condition,
leading to early retirement by age
55, with a total loss of earnings by age 65. In the second
scenario, without optimal rehabilitation,
Ms. du Plessis testified
that the Plaintiff’s physical and mental endurance would
continue to deteriorate. Without her mother’s
assistance, the
Plaintiff would likely be unable to manage the tasks her mother had
been performing, necessitating the closure
of her business once her
mother was no longer able to assist.
[39]
Regarding the Plaintiff's reported income in both post-accident
scenarios, Ms. du Plessis relied on averages
based on the Plaintiff's
statements. The Plaintiff reported seeing 3 to 4 clients monthly,
charging between R250.00 and R500.00
per consultation. Ms. du Plessis
averaged these figures to estimate an annual income of R15 750.00.
Additionally, the Plaintiff
reported performing one
house-strengthening ritual for R5 000.00, resulting in a total
post-accident income of R20 750.00
per annum or R21 533.00
in current monetary terms. No documentary evidence, such as
bank statements or proof of payment,
was provided to substantiate
these earnings, but Ms. du Plessis emphasized that the estimates were
based on the Plaintiff's affidavit
and salary scales used to compare
her reported earnings to industry norms. Ms. du Plessis
furthermore confirmed that the
Plaintiff had been receiving a
disability grant since September 2022, as evidenced by documentation
provided.
[40]
In response to further questioning, Ms. du Plessis clarified that
fluctuations in the Plaintiff’s business
prior to the
collision, particularly the decline in clients from 2018 to 2022,
could not be attributed to the accident, as these
fluctuations were
likely caused by external factors such as the COVID-19 pandemic.
Therefore, it was difficult to assess
whether the business
decline was linked to the collision. Ms. du Plessis however
maintained her projections was conservative.
LOSS
OF EARNINGS:
[44]
Upon review of the evidence, it is clear that the Plaintiff has
suffered a significant loss of income as
a direct consequence of the
severe injuries sustained in the collision. The Plaintiff’s
loss of smell and taste, critical
senses required for her role as a
traditional healer, has substantially compromised her ability to
perform her professional duties.
This impairment is further supported
by the occupational therapist’s evidence, which emphasized the
medium physical demands
associated with traditional healing. Due to
the Plaintiff’s orthopaedic limitations and chronic pain, she
is no longer capable
of independently meeting these physical
requirements.
[45]
The Plaintiff also testified regarding her involvement in a catering
business jointly operated with her sister;
however, there was no
corroborating evidence presented to support this claim. There were no
records of income, bank statements,
business documentation, or any
collateral information indicative of formal business operations.
Importantly, aside from the Industrial
Psychologist, none of the
Plaintiff’s other expert witnesses—including the
orthopaedic surgeon, plastic surgeon, neurologist,
or occupational
therapist—were made aware of any involvement in a catering
business. On the available evidence, it appears
that the catering
business was, at most, an undeveloped prospect, and any claimed
income from this venture has not been proven.
[46]
The Industrial Psychologist further testified that, as the
Plaintiff’s traditional healing business
expanded, particularly
with the potential transfer of clients from her mother, the
increasing demands on her time would have made
it unlikely for her to
sustain any involvement in a catering business. Consequently, any
anticipated future income from catering
would likely have been
short-lived in any event. The initial actuarial calculation provided
to the Court on 1 November 2023 assumed
that the Plaintiff earned
R4,300.00 per month from catering at the time of the collision and
that she would continue earning this
amount, adjusted for inflation,
until the age of retirement at 65. However, this assumption was
inconsistent with the evidence
of the Industrial Psychologist, who
opined that any such income, if any, would have ceased as the
traditional healing practice
grew. Considering this, the Court
requested a revised calculation which was submitted on 29 July 2024.
[47]
The revised actuarial calculation considered only the Plaintiff’s
income from traditional healing in
the pre-morbid scenario and
provided two scenarios for the post-morbid scenario. In the first
scenario, optimal rehabilitation
is assumed, with some residual
earning capacity post-accident. Applying contingency deductions of 5%
for both past pre- and post-morbid
earnings, and 15% and 35% for
future pre- and post-morbid earnings respectively, the total loss of
earnings was calculated at R2,476,806.00.
In the second scenario, it
is assumed that the Plaintiff does not receive optimal rehabilitation
and remains largely unemployed
post-accident. With the same
contingency deductions, the total loss of earnings was determined to
be R2,703,017.00.
[48]
It is well established that assessing damages for
loss of earnings and earning capacity is inherently speculative.
In
Southern Insurance Ass Ltd v Bailey
1984 (1) SA 98
(A) at
113-114, two quantification methods were outlined: first, a judge may
award a rounded estimate that appears fair and reasonable,
which is
often an intuitive rather than evidentiary approach. Alternatively,
quantification can be achieved through mathematical
calculations
based on evidence-based assumptions, where the value of this method
relies on the “soundness of the assumptions.”
The court
in “Bailey” recommended the latter approach as it
provides an informed, logical attempt at quantification,
contrasting
with the less reliable “gut feeling” of the first method.
This preference for actuarial calculation over
intuition was later
upheld in
Road Accident Fund v Guedes
2006 (5) SA 583
(SCA) at
586.
[49]
Having considered the evidence and the guiding
principles from the authorities, the Court is persuaded that
the
second calculation (that assumes that the Plaintiff does not receive
optimum rehabilitation) represents a fair and reasonable
award for
the Plaintiff’s loss of earnings and earning capacity. This
results in an amount of R2,703,017.00. This calculation,
incorporating only normal contingency deductions, adequately accounts
for any conservative estimates regarding the growth of the
Plaintiff’s traditional healing practice. The awarded sum
reflects the Plaintiff’s post-accident financial reality,
limited to modest income from occasional and restricted traditional
healing activities, supplemented by a disability grant. Given
the
Plaintiff’s physical and emotional impairments, combined with
her limited educational qualifications, it is evident that
her
capacity to earn income—whether as a traditional healer or in
any other field—has been permanently diminished.
GENERAL
DAMAGES
:
[50]
The Defendant has conceded the seriousness of the
Plaintiff's injuries. The Plaintiff cited various precedents
in
support of an award between R1,000,000.00 and R1,200,000.00, while
the Defendant referred to only the matter of
De Jong v Du Pisanie
NO (obo JG Rabie)
2004 (5) QOD J2-103 (SCA) to support a proposed
award of R750,000.00.
[51]
In
De Jongh v Du Pisanie NO (obo JG Rabe)
[2004] (5J2) QOD 103 (SCA)], the plaintiff, a 35-year-old employee of
Escom, sustained multiple serious injuries, primarily a head
injury
with brain damage leading to intellectual impairment and personality
changes, and significant orthopaedic injuries.
The head injury
involved complex fractures of the frontal skull extending to the
orbits, zygomatic arches, and jaw, resulting in
an extradural
hematoma requiring surgical intervention. Brain damage included
extensive focal damage to the frontal and temporal
lobes and moderate
diffuse concussive injury, leading to intellectual impairment (IQ of
70), loss of smell and taste, and personality
changes, including
aggression, apathy, and lack of judgment. Despite some retained
social functionality, the plaintiff developed
epilepsy, with seizures
controlled to two monthly episodes, and was declared permanently
unemployable, requiring a
curator bonis
and a part-time
caregiver. Orthopaedic injuries included a dislocated right
shoulder, soft tissue injuries to the neck and
back, and internal
damage to the right knee and ankle. These injuries resulted in
permanent pain, reduced mobility, and a lifelong
need for medical
intervention. The court, accounting for inflation, awarded
R858,000.00 in 2024 values for general damages.
In this case,
the inflation adjusted amount already exceeds the amount proposed by
the Defendant. Furthermore, this
case is distinguishable from
the precedent cited, as the Plaintiff has suffered more significant
injuries, including a severe head
injury, the loss of an eye, and
extensive scarring.
[52]
The court also considered the following matters:
[a] In
Dlamini v Road Accident Fund
[2012] (6A4) QOD 68 (GSJ)], the
plaintiff, a 37-year-old male Corporal employed in the Technical
Department of the South African
National Defence Force (SANDF),
sustained a brain injury along with a fractured mandible, tooth loss,
and soft tissue injuries
to the cervical and lumbar spine. Following
approximately three months of hospitalization, the plaintiff was left
with neuropsychological
impairments resulting from the head injury,
including an elevated risk of developing seizures and significant
personality changes.
Due to these sequelae, he was deemed unfit for
employment in the open labour market. In 2012, the court
awarded R850,000.00
for general damages, which, adjusted for
inflation, equates to R1,573,000.00 in 2024 values.
[b] In
Cawood NO v Road Accident Fund
[2023] (8A4) QOD 195 (GNP)],
the plaintiff, an adult female, sustained a substantial head injury
resulting in fractures to the
skull, skull base, and facial bones. A
CT scan confirmed a frontal extradural hematoma, necessitating
surgical drainage. While
her current neurological examination
revealed no focal deficits, she reported ongoing issues with memory,
concentration, and behavioural
changes. Although the traumatic
brain injury has not physically limited her capacity to work, her
cognitive impairments have
markedly impacted her ability to maintain
gainful employment. She experiences psychological and cognitive
disturbances, limitations
in daily activities, persistent headaches,
dizziness, and sensitivity to light and noise, necessitating lifelong
supervision and
support. In 2023, the court awarded
R1,400,000.00 for general damages, which, adjusted for inflation,
amounts to R1,471,000.00
in 2024 values.
[c] In
Nsibande v Road Accident Fund
[2022] (8B3) QOD 1 (GNP)], the
plaintiff, an adult male plant attendant and mineworker, sustained
significant injuries in a motor
vehicle collision, including a skull
base fracture and fractures to the nose and facial bones. The
injuries resulted in a
moderate diffuse traumatic brain injury,
leading to a minor neurocognitive disorder, predominantly affecting
memory. Additionally,
he suffered nasal deformation, causing airway
obstruction, along with permanent facial scarring and disfigurement.
The plaintiff,
who had completed Grade 12 and obtained an N5
Electrical Engineering Certificate, had intended to pursue an
electrical apprenticeship
to qualify as an electrician. However,
as a result of his injuries, he was considered a vulnerable employee,
requiring a
supportive work environment to retain employment.
Dissatisfied with the initial award, he appealed to the full bench,
which revised
the compensation for loss of earnings in line with the
admitted actuarial calculations. The full court also granted general
damages,
which had not been awarded at trial. In 2011, the
court awarded R750,000.00 for general damages, which, adjusted for
inflation,
equates to R1,457,000.00 in 2024 values.
[53]
Having considered the Plaintiff's injuries, necessary future medical
treatment, prognosis, expert assessments,
and applicable case law,
the court finds that an award of R1,200,000.00 is fair and
appropriate in the circumstances.
COSTS
:
[54]
It is well-established that a court has a wide
discretion in the awarding of costs, which must be exercised
judicially, considering the specific circumstances of each case. As
of 12 April 2024, Rule 67A of the Uniform Rules of Court has
come
into effect and applies prospectively, meaning that the scale
specified in any cost order will apply only to work undertaken
after
this date. Rule 67A(3)(a) of the Uniform Rules now prescribes that a
cost order for the recovery of counsel’s fees
on a
party-and-party basis must be made on one of three scales: “A,”
“B,” or “C.” Rule 67A(3)(b)
further grants
the court the authority to consider factors such as the importance,
value, and complexity of the matter when determining
the appropriate
scale.
[55]
The Plaintiff’s counsel contended that an award of costs on
scale “C” is justified, given
the substantial quantum
involved and the absence of a reasonable settlement offer, which
necessitated comprehensive preparation
and a full trial. Counsel
argued that the Plaintiff should not bear the financial burden
resulting from the Defendant’s inadequate
conduct and
maintained that the large volume of claims against the Defendant
should not be interpreted as diminishing the complexity
of the
damages claimed. The Defendant, in response, simply argued that the
costs should be awarded on scale “A”, as
the matter did
not present significant complexity.
[56]
Having considered the submissions of both parties, the court is of
the view that recovery of counsel’s
fees on Scale “B”
for work performed after 12 April 2024 is both fair and appropriate.
It is noted, however, that the
Plaintiff’s counsel engaged in
excessive drafting, producing a 56-page practice note and 76-page
heads of argument, which
include extensive quotations from
medico-legal reports, blank pages, and pages with only partial text,
creating unnecessary paperwork
rather than aiding in concise case
presentation. Accordingly, the costs for drafting the practice
note are limited to 2 hours,
and the costs for drafting the heads of
argument are limited to 5 hours.
[56]
As a result the following order is made:
ORDER:
The
draft order marked “X” is made an order of court.
L.
COETZEE
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA
DIVISION, MBOMBELA
Appearances:
Counsel
for the Plaintiff:
Adv.
H. Percival
Instructed
by:
Philip
Meyer Attorneys Inc.
Attorney for the Defendant:
Mr. F. Siliga
Instructed by:
State Attorney, Mbombela
Date heard:
29 July 2024
Judgment delivered:
15 November 2024