CASE NUMBER- initials 0 JUDGMENT
YEAR- MONTH -DAY
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
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO : 096870/2023
DATE : 28-01-2025
In the matter between
J[…] F[…] S[…] Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
WEIDEMAN , AJ:
This claim arose as a result of an accident which occurred on the 19
th of May 2019 and at which stage the plaintiff was a passenger
in a vehicle on his way to a church service in Fochville. DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES / NO.
(3) REVISED.
DATE
SIGNATURE
CASE NUMBER- initials 1 JUDGMENT
YEAR- MONTH -DAY
The plaintiff alleged in his section 19(f) statutory affidavit that the
driver of the vehicle in which he was a passenger was driving at
an excessive speed, but that he fell asleep and only woke up in
the hospital.
The OA R indicates that the vehicle left the road as a result of a
burst tyre and refers to 12 people who were injured in the
accident , and two who had passed on. I asked counsel to address
the Court on whether the burst tyre would not constitute a sudden emergency . In response counsel argued that it had to have been
pleaded and to the extent that it had not been pleaded, it falls by the wayside.
The plaintiff requires 1% negligence on the part of either the driver or owner of the vehicle to succeed with his claim on liability
and that degree of negligence is clearly present . The defendant is
accordingly liable for a 100% of such damages as the plaintiff
may be able to substantiate.
Before presenting the plaintiff’s case on liability there were two
applications . The first application was in terms of Rule 38(2) ,
which application was granted. The second application was in
terms of R ule 33(4) . This was to separate the aspect of general
damages and to postpone same sine die. This application was
also granted.
The plaintiff , according to the particulars of claim, sustained a
moderate brain injury with a depressed skull fracture, soft tissue injuries to the spine and multiple abrasions and lacerations. The
difficulty here was that this moderate brain injury was supra
imposed on a brain that had already been struggling to keep pace
with the demands made on it. This is clear from the number of
years that the plaintiff repeated grades in school prior to the
CASE NUMBER- initials 2 JUDGMENT
YEAR- MONTH -DAY
accident.
Given the plaintiff’s apparent modest pre – accident intellectual
ability, I have difficulty to accept the expert statement that , had
the accident not occurred, the plaintiff would have been able to successfully complete Grade 12. I do not think that the available
facts , which predate the accident , support the opinion that the
plaintiff would have been able to achieve a Grade 12 qualification
pre - accident .
The basis on which loss of income was calculated is set out in the
report of the industrial psychologist, Mr P everett. Mr Peverett give
his opinion on what the plaintiff would have been able to do with a
Grade 12 level of education but for the accident . This includes
employment in the non- corporate sector on an income basis as
per StatsSA . The ‘having regard to the accident ’ income is given
as zero.
The uncertainties about the plaintiff’s ability to progress
academically pre - accident , combined with the sector within
which he would have had to compete for employment , had the
accident not occurred and in particular the high levels of known unemployment in those sectors, suggest that a high contingency deduction should be made from the actuarial ly calculated figure
which is premised on the opinion that the plaintiff would have achieved Grade 12, but for the accident.
As far as past loss of income is concerned, the court has no
quarrel with the sum of R10 500 as calculated. As far as future
loss of income or impairment of earning capacity is concerned, the actuarial calculated figure of R2 344 700, is accepted only for the basis of the calculation. From this amount a 50 percent
contingency is deducted, leaving a net amount of R1 172 350
which is a reasonable reflection of plaintiff’s earnings, but for the
CASE NUMBER- initials 3 JUDGMENT
YEAR- MONTH -DAY
accident – and accepting that he is now unemployable.
To summarise: I order that:
1. The plaintiff’s application in terms of section 38(2) is
granted.
2. The plaintiff’s application in terms of rule 33(4) to
separate out the claim for general damages and postpone same sine die is granted.
3. The defendant is liable for 100% of such damages as the
plaintiff may be able to substantiate.
4. The defendant is liable to provide the plaintiff with an
Undertaking in terms of section 17(4)(a) of the Road
Accident Fund Act for 100% of all such future hospital,
medical and ancillary expenses that the plaintiff may incur as a result of injuries sustained in the accident.
5. The defendant shall pay the plaintiff in respect of past
loss of earnings the sum of R10 500.
6. The defendant shall pay the plaintiff in respect of the
claim of future loss of earnings the sum of R1 172 350.
7. The defendant shall pay the plaintiff’s party -and- pay
costs as taxed or agreed. All costs subject to the discretion of the taxing master and counsel’s fees to be on Scale B.
WEIDEMAN , AJ
JUDGE OF THE HIGH COURT
DATE : ……………….