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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no:4166/2021
In the matter between:
R. J. RAMAKATSA PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: R. J. Ramakatsa v Road Accident Fund (4166/2021)
Coram: GUSHA, AJ
Heard: 27, 28, 30 August 2024 and 16 September 2024
Heads of Argument filed 19 and 20 September 2024.
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The date
and time of hand down is deemed to be at 11h00 on 30 December
2024. A hard copy has been placed in the pigeonholes of the legal
representatives of the parties.
.
Summary:
Motor vehicle collision – claim for damages consequent upon bodily injuries
sustained – merits – liability of Road Accident Fund. Quantum – general damages – loss of
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earnings.
ORDER
1. The defendant shall pay the plaintiff the total sum of R3 144 688.00 in respect of
general damages and future loss of earnings.
2. The defendant is ordered to furnish to the plaintiff with an undertaking in terms of
s 17(4) (a) of the Road Accident Fund Act 56 of 1996, for the costs of the future
accommodation of the plaintiff in a hospital or nursing home or the treatment of or the
rendering of a service or the supplying of goods to the plaintiff arising out of the injuries
sustained by the plaintiff in the motor vehicle collision mentioned above, in terms of which
undertaking the defendant will be obliged to compensate plaintiff in respect of the said
costs after the costs have been incurred and on proof thereof.
3. The defendant shall pay the plaintiff’s taxed or agreed party and party costs on
scale A, including but not limited to the costs set out hereunder:
3.1. The reasonable qualifying and reservation fees and expenses (if any) of the
following experts
3.1.1. Dr LF Oelofse – Orthopaedic Surgeon
3.1.2. Ms AM Kunz – Occupational therapist
3.1.3. Dr AC Strydom – Industrial Psychologist
3.1.4. Dr MB Huth – Neurologist
3.1.5. Dr S Van Heerden – Plastic Surgeon
3.1.6. Mr JJC Sauer – Actuary
3.1.7. Dr J Desai – Maxillofacial and Oral Surgeon
3.1.8. Ms M Kok – Neuropsychologist
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4. Payment of the capital amounts shall be made without set -off or deduction, within 180
(hundred and eighty) calendar days from the date of granting of this order, directly into the
trust account of the plaintiff’s attorneys of record by means of electronic transfer, the details
of which shall be furnished to the defendant by the plaintiff’s attorneys of record.
5.
The plaintiff’s claim for past hospital and medical expenses is separated in
term of the provisions of Rule 33(4) of the Uniform Rules of Court and postponed for
later adjudication.
JUDGMENT
GUSHA AJ
[1] On 2 August 2020 the plaintiff, then 48 years old, was involved in a vehicle
collision (the collision) with a heavy motor vehicle (truck) with unknown registration
details and driven by an unknown driver (unknown insured driver). The collision occurred
on the R30 and R34 intersection in the direction heading towards Odendaalsrus. At the
time of the collision the plaintiff drove a motor vehicle with registration H CT […]. The
plaintiff sustained bodily injuries as a result of the collision and resultantly instituted
damages against the Road Accident Fund ( the defendant) for the said bodily injuries and
its sequelae.
[2] The plaintiff alleged in his particulars of claim that the collision was caused by the
sole negligence of the unknown insured driver who, amongst others , drove at an
excessive speed, failed to keep a proper look out and failed to comply with statutory road
traffic regulations.
[3] The defendant denied any knowledge of the incident and pleaded that should it
be found that the incident occurred as alleged by the plaintiff it specifically denies that the
unknown insured driver was negligent . The defendant further pleaded that in the event
that the court finds that the unknown insured driver was negligent, it denied that such
negligence was the cause of the collision. In the alternative, the defendant further
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pleaded that in the event that the court finds that the unknown insured driver was both
negligent and that such negligence caused the collision, the court should find
contributory negligence on part of the plaintiff and accordingly reduce his claim in
accordance with the provisions of the Apportionment of Damages Act 34 of 1956.
[4] The parties could not meet each other with regards to separation of the merits
and quantum in terms of rule 33(4) of the Uniform Rules of Court ; this matter accordingly
proceeded to trial on both merits and quantum.
[5] Prior to the commencement of the trial, I was informed by the parties that the
following aspects were now common cause between them : compliance by the plaintiff
with all formal requirements of the Road Accident Fund Act 56 of 1996 (the Act), locus
standi as well as jurisdiction. The parties were further in agreement that the only issues in
dispute were whether there was a collision, if so, whether there was an insured driver ,
and if so, whether any contributory negligence could be attributed to the plaintiff.
[6] In support of his claim, the plaintiff tendered evidence as follows: he testified that
in the early hours of 2 August 2020 he was en route from the mine compound where he
resided to his place of work at the mine. He travelled on the R30, a route he drove on
routinely on his way to and from work for the past 14 years . The R30 is a dual
carriageway and the traffic at the time was light with vehicles traveling in both directions.
The speed limit on the R30 is 120 k/h and he drove between 60- 80 k/h with his
headlights on. Ahead of his vehicle were some four to five vehicles , he also noticed on
his rear-view mirror vehicles behind him.
[7] The plaintiff further testified that the R34 intersects with the R30 at a junction,
and a motorist travelling on the R34 must turn left or right in order to join the R30. A
driver travelling on the R34, upon reaching the intersection, is met with a stop sign which,
across the road, is accompanied by a chevron traffic sign signaling to motorists that the
R34 does not continue straight, but merges with the R30.
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[8] Whilst driving and approaching the T-junction in question, he observed a truck
approaching from the R34 towards the R30. He surmised that the truck would stop at the
T-junction as he, travelling on the R30, had the right of way. Soon after he drove past the
T-junction, he heard a loud crash as the truck collided with his vehicle on the left side.
After the collision, he was trapped in the wreck. He lost consciousness and next regained
it when he was admitted at St Helena Hospital.
[9] The plaintiff sustained multiple injuries, scalp abrasions, head and face injuries,
left hip and upper leg injur ies, a shoulder injury and sustained visible disfigurement and
scarring to his head, face, shoulder and legs. When the plaintiff was called to testify , I
observed that he walked with a pronounced limp and with the use of a crutch.
[10] At the time of the collision he was employed at Tshepong M ine, working
underground as a development team leader and earned approximately R15 200.00 per
month. Subsequent to the collision, he was laid off at work.
[11] The plaintiff was in cross-examination and quizzed on the condition of his vehicle
pre-collision – he testified that it was in good condition. He was also quizzed on the
speed he drove in relation to the speed at which the truck drove. He maintained that he
drove lower than the speed limit and could not say at which speed the truck drove. He
further maintained that there was a stop sign at the intersection signaling to traffic on the
R34 to stop before joining the R30.
[12] The second witness to testify was Sgt Mahlatsi , a police officer employed by the
South African Police Service as a detective at Odendaalsrus. He testified that he
received a call regarding an accident on the R30 at approximately 02h35. He made his
way to the scene, where he found the plaintiff’s badly damaged vehicle on the passenger
side. He observed that the plaintiff was still trapped inside, badly injured.
[13] He testified that the R30 is well known to him ; at the T- junction there is a stop
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sign and across from it, a chevron road sign. During cross-examination his evidence was
not seriously taken issue with, save to probe whether he observed anything which might
indicate the plaintiff’s vehicle may have overturned and rolled. He responded in the
negative and testified that upon his arrival , the vehicle was on its wheels. He was also
quizzed on the presence of the stop sign and he testified that he could not recall whether
there were times when the stop sign was absent, he was however certain that there is a
stop sign at the T-junction.
[14] In addition to the viva voce evidence the plaintiff submitted into evidence , the
following expert reports in terms of Rule 38(2)
1 were tendered;
15.1. Dr LF Oelofse – Orthopaedic Surgeon
15.2. Ms AM Kunz – Occupational therapist
15.3. Dr AC Strydom – Industrial Psychologist
15.4. Dr MB Huth – Neurologist
15.5. Dr S Van Heerden – Plastic Surgeon
15.6. Mr JJC Sauer – Actuary
15.7. Dr J Desai – Maxillofacial and Oral Surgeon
15.8. Ms M Kok – Neuropsychologist
[15] The plaintiff hereafter closed his case. The defendant closed its case without
tendering any evidence.
[16] Section 17 of the Act provides for the liability of the defendant and states that;
‘(1) The Fund or an agent shall –
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(a) subject to this Act, in the case of a claim for compensation under this
section arising from the driving of a motor vehicle where the identity of the owner
or the driver thereof has been established;
(b) subject to any regulation made under section 26, in the case of a claim for
compensation under this section arising from the driving of a motor vehicle where
the identity of neither the owner nor the driver thereof has been established, be
obliged to compensate any person (the third party) for any loss or damage which
the third party has suffered as a result of any bodily injury to himself or herself or
the death of or any bodily injury to any other person, caused by or arising from the
driving of a motor vehicle by any person at any place within the Republic, if the
injury or death is due to the negligence or other wrongful act of the driver or of the
owner of the motor vehicle or of his or her employee in the performance of the
employee’s duties as employee:’
[17] It is established law that the plaintiff has to prove its claim against the defendant
on a preponderance of probabilities. 2 The preponderance of probabilities standard
requires that the court must be satisfied that an incident or event happened if the court
considers that, on all the evidence before it, the occurrence of the event is more likely
than not. Thus, for the plaintiff to succeed, the court must be satisfied that it is more likely
than not that the incident happened as recounted by him.3
[18] Whether the pre-requisites for liability have been met or not, the court in Wells v
Shield Insurance4 stated that such a determination involved two separate enquiries. The
first being concerned essentially with the cause of the bodily injury, whereas the second
is concerned with legally blameworthy conduct on the part of certain persons as being
the cause of the bodily injury.
[19] On the evidence before me, the first pre-requisite need not detain this court any
further, it has been met. There is no doubt that the plaintiff sustained the injuries he did
2 Sardi and Others v Standard and General Insurance 1977 (3) SA 776 (A).
3 Chauke v RAF [2023] ZAFSHC 214.
4 Wells and Another v Shield Insurance Co and Others 1965 (2) SA 865 (C).
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as a result of a motor vehicle collision. T he defendant did not present any evidence
gainsaying the plaintiff’s version on this aspect.
[20] In my view , similarly, the second pre- requisite has been met as well . The court
only has the version of the plaintiff with regards to the alleged negligence of the unknown
insured driver and must therefore decide this aspect on that version alone, as the
defendant did not tender any gainsaying evidence. Furthermore, if regard is had to the
admitted evidence – the photographs of the R30 and R34 layout – it becomes evident to
any licenced driver that traffic driving on the R34 joining the R30 must stop at the
intersection, that is the ordinary, orderly and legal manner of driving. Accordingly, in the
absence of any other gainsaying evidence, it must follow, as testified by the plaintiff, that
a vehicle travelling on the R34 joined the R30 without stopping at the intersection and
collided with the vehicle driven by the plaintiff.
[21] What now remains for decision is the quantum of damages to be awarded to the
plaintiff for the bodily injuries he sustained. Towards the tail -end of these proceedings ,
the defendant made a tender in terms of s 17(4) of the Act in respect of future medical
expenses. The plaintiff accepted the tender. Where the parties are at odds with each
other is with regards to the remaining heads of damages.
[22] The plaintiff submitted in argument that a fair and reasonable amount to award in
respect of general damages was R1 200 000 whereas the defendant submit ted that
amount to be R500 000. I n respect of future loss of future earning capacity , the plaintiff
submitted that a fair and reasonable amount would be an amount of R2 644 688, making
provision for a 5% contingency deduction as per the actuary’s expert report. The
defendant, in turn, submitted that this amount should be an amount o f R1 184 557.20,
after applying a 50% contingency deduction on the actuarial calculations.
[23] It needs no restating that a person is entitled to be compensated to the extent his
or her patrimony has been diminished in consequence of another’s negligence.
5 It further
5 RAF v Guedes [2006] ZASCA 19; 2006 (5) 583 (SCA) para 8.
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needs no restating that such damages include loss of future earning capacity. However,
the calculation of the quantum of a future amount, such as loss of earning capacity, is not
a matter of mathematical calculation. By its nature such an enquiry is speculative and a
court can, therefore, only make an estimate of the present value of the loss which is often
a very rough estimate. The court necessarily exercises a wide discretion when it
assesses the quantum of damages due to the loss of earning capacity and has a large
discretion to award what it considers just . Courts have adopted the approach that, in
order to assist in such a determination, an actuarial computation is a useful basis for
establishing the quantum of damages. Even then, the trial court has a wide discretion to
award what it believes is just.
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[24] It is trite that the determination of allowances for contingencies involves, by its
very nature, a process of subjective impression or estimation rather than an objective
calculation. The question of the contingencies deductions to be applied, as is the issue of
the calculation of the quantum of a future amount, such as loss of capacity, are often
difficult matters.
[25] There are no hard and fast rules of mathematical logic in the determination of a
contingency discount. One has to make a value judgment in determining a rate of
contingent discount. The court has a wide discretion based upon a consideration abysm
of all the relevant facts and circumstances. Contingencies of whatever nature generally
serve as a control mechanism to adjust the loss to the circumstances of the individual
case in order to achieve justice and fairness to the parties.
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[26] With regard to loss of income the plaintiff must adduce evidence of his income in
order to enable the court to assess his loss of past and future earnings. In Mvundle v
RAF8 the court held that ‘[i]t is trite that damages for loss of income can be granted
where a person has in fact suffered or will suffer a true patrimonial loss in that his or her
6 Ibid para 8. See also AA Mutual Assurance Association Ltd v Maqula 1978 (1) SA 805 (A) at 809B.
7 Hall v Road Accident Fund [2013] ZAGPJHC 129 para 52.
8 Mvundle v Road Accident Fund [2012] ZAGPPHC 57.
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employment situation has manifestly changed.’9
[27] In the present matter, the plaintiff suffered a loss of his earning capacity post the
collision. He was retrenched; however, he was not left totally out of pocket as, prior to
being retrenched, he received his basic salary and, post retrenchment , his severance
package as well as a disability grant from the government, which bolstered his income.
With these facts in mind, I hold the view that for general damages , an amount of R500
000 is fair and reasonable compensation.
[28] In respect of future loss of earning capacity , I see no reason to deviate from the
accepted actuary report. The defendant agreed to have the reports tendered in terms of s
38(2) of the Act, it would therefore not be proper to now question same in the heads of
argument. The factual allegations in the affidavit stand unchallenged and, accordingly, no
dispute of fact in respect thereof arises. I consequently conclude that the defendant is to
pay the plaintiff the amount of R2 644 688.00 in respect of the future loss of earnings.
Costs
[29] The general rule with regard to costs is that the same follows the result. Although
counsel for the defendant submitted that I make a costs order on scale C, I am not
persuaded. This was a rather run-of-the mill case with nothing complex justifying costs on
scale C.
Order
[30] Resultantly, I make the following order:
1. The defendant shall pay the plaintiff the total sum of R3 144 688.00 in
9 Ibid para 42 with my emphasis added.
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respect of general damages and future loss of earnings.
2. The defendant is ordered to furnish to the plaintiff with an undertaking in
terms of s 17(4)(a) of the Road Accident Fund Act 56 of 1996, for the costs of the
future accommodation of the plaintiff in a hospital or nursing home or the
treatment of or the rendering of a service or the supplying of goods to the plaintiff
arising out of the injuries sustained by the plaintiff in the motor vehicle collision
mentioned above, in terms of which undertaking the defendant will be obliged to
compensate plaintiff in respect of the said costs after the costs have been incurred
and on proof thereof.
3. The defendant shall pay the plaintiff’s taxed or agreed party and party costs
on scale A, including but not limited to the costs set out hereunder:
3.1 The reasonable qualifying and reservation fees and expenses (if
any) of the following experts
3.1.1. Dr LF Oelofse – Orthopaedic Surgeon
3.1.2. Ms AM Kunz – Occupational therapist
3.1.3. Dr AC Strydom – Industrial Psychologist
3.1.4. Dr MB Huth – Neurologist
3.1.5. Dr S Van Heerden – Plastic Surgeon
3.1.6. Mr JJC Sauer – Actuary
3.1.7. Dr J Desai – Maxillofacial and Oral Surgeon
3.1.8. Ms M Kok – Neuropsychologist
4. Payment of the capital amounts shall be made without set -off or deduction,
within 180 (hundred and eighty) calendar days from the date of granting of this order,
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directly into the trust account of the plaintiff’s attorneys of record by means of
electronic transfer, the details of which shall be furnished to the defendant by the
plaintiff’s attorneys of record.
5.
The plaintiff’s claim for past hospital and medical expenses is separated
in term of the provisions of rule 33(4) of the Uniform Rules of Court and
postponed for later adjudication.
NG GUSHA, AJ
Appearances
For the Plaintiff: Adv. D.J Marx
Instructed by: Du Plooy Attorneys
Bloemfontein
For the Excipients: Mrs. J Gouws
Instructed by: Office of the State Attorney
Bloemfontein