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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
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 1970/2020
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED: NO
DATE: SEPTEMBER 2024
SUTHERLAND DJP
NOMPUMELELO FLORENCE NDLOVU PLAINTIFF
v
THE ROAD ACCIDENT FUND DEFENDANT
___________________________________________________________________
This Judgment has been delivered by uploading to the digital data case of the High
Court of South Africa, Gauteng Div ision, Johannesburg on 19 September 2024 at
14h00 and by email to the parties.
THE ORDER
___________________________________________________________________
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1. The Defendant shall pay to the Plaintiff the sum of R847,000 as compensation
for delictual damages sustained in a motor vehicle collision that occurred on the 15 th
of October 2016, in settlement of the Plaintiff’s claims in respect of past medical
expenses and loss of earnings.
2. The Plaintiff’s claim in respect of general damages is postponed sine die.
3. The capital amount referred to in paragraph 1 above, shall be paid by the
Defendant directly into the trust account of Andrew Meldrum Attorneys Incorporated,
the attorney of record of the Plaintiff as specified hereunder:-
A[…] M[…] A[…] I[…] T[…] A[…]
First National Bank
W[…] P[…] Branch
Account number: 6[…]
Branch code: 2[…]
4. The Defendant shall pay interest on the amount referred to in paragraph 1
(one) above at the rate of 11.75% per annum as from 14 (fourteen) days from the
date of the final Court order to date of final payment.
5. The Defendant is ordered in terms of section 17(4)(a) of the Road Accident
Fund Act 56 of 1996, to reimburse the Plaintiff for the costs of any future
accommodation of the Plaintiff in a hospital or nursing home, or treatment or
rendering of service to her or supplying goods to her arising out of injuries sustained
by Plaintiff in the motor vehicle accident which occurred on the 15 October 2016,
after such costs have been incurred and upon proof thereof.
6. The Defendant shall pay the Plaintiff’s taxed or agreed costs to date of action
on the party and party High Court Scale B, such costs to include the following:
6.1 the costs of obtaining the following expert medico- legal reports and/or
addendum reports and/or serious injury assessment forms:
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6.1.1 Dr Colin Barlin – Orthopaedic Surgeon;
6.1.2 Anne Reynolds – Occupational Therapist;
6.1.3 Kim Kaveburg – Occupational Therapist;
6.1.4 Elna Roussouw – Industrial Psychologist;
6.1.5 Prof. John Ouma – Neurosurgeon;
6.1.6 Arch Actuarial Consultants – Actuary.
6.2 The reservation fees and preparation of the costs (including the
preparation of joint minutes) if any, and as allowed by the Taxing Master, of
the Plaintiff’s expert witnesses as set out above.
6.3 The cost of Counsel.
7. In the event that costs are not agreed the Plaintiff shall serve the notice of
taxation on the Defendant or its attorneys of record and the Defendant shall be
allowed a period of 14 (fourteen) court days to make payment of the taxed costs.
JUDGMENT
SUTHERLAND DJP:
[1] The Plaintiff, Nompelelo Florance Ndlovu, seeks damages from the
Defendant, the Road Accident Fund (RAF). She was a passenger in a vehicle when
on 16 October 2016 she sustained the injuries upon which he claim is based. She
was then 45 years of age.
[2] The RAF acknowledges liability for 100% of the proven damages. An
undertaking in terms of section 17(11) of the Road Accident Fund Act 56 of 1996 has
been given in respect of future medical expenses. The claim for general damages
was referred for a serious injury assessment which was declared to not be serious.
This Judgment does not address the question of general damages.
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[3] In dispute remain the computation of the quantum of:
3.1. Past medical expenses
3.2. Past loss of income
3.3. Future loss of earning capacity.
[4] All of the evidence was adduced on affidavit pursuant Rule 38(2) of the
Uniform rules of Court. These affidavits included the plaintiff, her employer Ms Casey
Sparks and the several medical practitioners and an industrial psychologist , as listed
in the order. The RAF adduced no evidence. The body of evidence on affidavit
stands unrebutted.
[5] The injuries were severe enough for the plaintiff to be hospitalised for a
fortnight. Her cervical neck and her lower back suffered flexion extension injur ies.
Her right arm and shoulder and right leg were also injured. There was no evidence of
a head injury. The long- term sequelae relate to the neck and back injuries.
Subsequently she was treated by physiotherapy and returned to work as a domestic
servant.
[6] The claim for past medical expenses is founded on series of vouchers to a
physiotherapist and confirmed by Ms Sparks. The sum claimed is R 5424.00. The
documentation was submitted to the RAF in July 2023, 14 months before this
hearing. The attorney for the RAF informed me that he is still awaiting the RAF to
confirm an acceptance. As there is no rebuttal to offer and the basis for the claim is
proven, this head of damages is proven in the sum of R5464.
[7] The further claims have been articulated as being for past and future loss of
earnings.
[8] The claim for what is called ‘past’ earnings is in truth a segment of the claim
for future loss as initially computed as at 2020, four years ago but which because of
the delay in coming before a court was overtaken by such delay. An amount of
R23,253 is claimed. This sum is capable of exact computation by reference to pay
slips and UIF payments being the obvious sources of information. Some recent
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payslips from 2022 onwards are adduced but proof of UIF payments, which in any
event ought, strictly speaking, to have been reflected on the pay slips. Because the
loss is related to periods of indisposition during which, allegedly , the plaintiff suffered
reduced earnings, the sum proposed to the court is properly explained. I am satisfied
some loss could probably occur, based on the unrebutted affidavit evidence, but the
computation is unsatisfactory. The computation appears to be based mostly on
extrapolations from remarks made to the various expert witnesses. That is not good
enough. Moreover, despite the claim that her rate of pay has been reduced this is
not apparent from such objective evidence as is available eg, she earned R5000 per
month in 2016 and R7000 in 2024 a trajectory which is in keeping with the general
rate of inflation. For these reasons, in my view, it is inappropriate to accept this figure
as reliable. The head of damages is unproven in the sum claimed but it is
appropriate to make some award. Had the RAF fulfilled its function the uncertainty
would not exist. On the premise of being even handed between the parties I propose
an arbitrary sum of R10,000.
[9] As to the future loss of earning capacity, the basic facts , as set out in the
several expert reports from the practitioners , show that the plaintiff has indeed
suffered a diminution of her capacity to work as a domestic servant in a private
residence. Domestic work is generally regarded as medium grade work as distinct
from light or heavy work. Reference is appropriately made to the need for her , from
time to time, to lift heavy objects, and do much bending, stopping, stretching up and
down and so forth. These movements are essential to activities in such species of
work. The plaintiff’s arthritic cervical neck and back are directly implicated in these
manoeuvres. She suffers from chronic pain. The visit s to a physiotherapist attest to
manoeuvres. She suffers from chronic pain. The visit s to a physiotherapist attest to
that. She has become depressed, in part from her physical condition and in part from
the anxiety derived from a fear of losing her job because she can perform only sub-
optimally. Ms Sparks has been a sympathetic employer who has made generous
accommodation for the plaintiff’s limitations for the past 8 years, including, the
routine days of work being reduced from 5 to 3 per week since February 2024. This
arrangement is not sustainable indefinitely.
[10] The initial medical view was that the plaintiff would sacrifice 5 years of a
working life and retire earl y at age 60. In 2024, at the time of the hearing, she is 53
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years of age. This view emanates essentially from Dr Ba rlin, the orthopod. His
report is dated 2 March 2020 – four years after the accident. A year earlier he had –
unmotivated – expressed the view that she could sensibly retire at age 58. Her
condition in 2020 was such that she had chronic pain and tenderness in the affected
areas. The prognosis was treatment by physiotherapy and pain killers. Dr Barlin
thought her productivity was reduced by 10%.
[11] A neurosurgeon Prof Ouma examined her on 22 April 2021 – 5 years after
the accident. Prof Ouma noted the report o f a supposed stroke in 2018 with some
incredulity. He did nonetheless note a loss of power and sensation on the rightside of
her body. He opined that the HIV positive status might explain the ostensible stroke-
like symptoms. His major findings for present purposes is related to headaches
linked to a possible concussion during the accident, based on her report of such an
event. As alluded to, no record of a head injury at the time of the accident exists. As
a result, the headaches cannot be attributed to the accident. Unhappily, the medical
evidence does not address the possibility that the headaches are a form of referred
pain from her chronic arthritic neck.
[12] The latest view expressed is that of Ms E A Rossouw an Industrial
Phycologist whose report is dated 9 September 2024. Ms Rossouw contends that
the plaintiff is at present in such a condition of discomfort that she is ‘unemployable’
and should cease work now. This is supported in general terms by an occupational
therapist Ms Kim Kaveburg.
[13] These views suffer from a lack of support from the orthopaedic expert Dr
Barlin. Moreover, the fact that for the past eight years the plaintiff has worked, and
continues to do, would require more substantiation to establish convincingly, on the
eve of a hearing, that her condition has so radically deteriorated. I express my
eve of a hearing, that her condition has so radically deteriorated. I express my
scepticism about these conclusions , which I regard as exaggerated when compared
with the objective evidence available.
[14] The plaintiff’s present overall condition cannot plausibly be attributed
exclusively to the persistent neck shoulder and back pain. In particular, in 2018 she
experienced what is opined to be a mild stroke but was probably something less
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hazardess. Regrettably , no serious attempt has been made to disaggregate her
present condition to link it or unlink it from that occurrence. I am left to make do with
that lacuna. On behalf the plaintiff , I am invited to allow a 25 % contingency to
accommodate the overall uncertainties including her conditions as influenced by that
supposed stroke, and no less by her HIV positive status. This approach takes the
exercise in the rough and ready zone.
[15] The contribution on behalf the RAF was to take up the stance that the court
should assume a reduced work life of 5 years and multiply the plaintiffs present
annual earnings of R90,000 by 5 and deduct a 15 % contingency. This yields a sum
of about R450,000. I took this submission as being seriously made. It warrants no
further comment nor attention.
[16] The actuary has presented two computations. The rate of income both in
2016 and at present are correctly noted. The methodology of computation is not
challenged. He allows a 15% contingency , rather than the 25% now proposed on
behalf of the plaintiff. The difference in the two computations of the actuary is
dictated by the unemployability contended for as described above as distinct from
the loss of 5 years of working life.
[17] In the former computation, given in 2021 and later revised, the sum is
presented as R 696,054. On the lat est approach, ie, immediate unemployability, the
sum being sought by the plaintiff , excluding the other two heads of damages , is
R806,817. In my view, the former computation stands on firmer objective grounds; ie
the premise is that articulated by Dr Barlin.
[18] Nevertheless, the factor which warrants considerable weight is the plaintiffs
market credibility. It is manifest that she is seriously uncom petitive were her present
employer to dispense with her services. This prognostication posits that she could
work at the same performance levels but that nobody is likely to want to employ her.
work at the same performance levels but that nobody is likely to want to employ her.
On these grounds the unemployability thesis is on firmer ground than the
exaggerations alluded to above. Moreover, again, were there to be some doubt, the
abject dereliction by the RAF to perform its function offers no alternative concrete
scenario to pit against the thesis.
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[19] The R5464 for past medicals should be added to the sum payable. The ‘past’
component of lost earnings in a sum of R10,000 must be added to the sum payable.
[20] This calculation leads me to propose an overall sum, rounded up:- R830,817
plus R5464 plus R10,000 = R 846281 > R 847,000.
[21] As regards costs, having regard to the issues I am of the view that scale B is
appropriate. It was contended that the rigours of cajoling the RAF into doing its job
warranted a higher scale but, despite my despair at the unprofessional conduct of
the RAF, this is not an always an appropriate way to address its shortcomings.
[22] The contingency fee agreement of 20 July 2024 is declared applicable.
[23] Accordingly, the order set out above is hereby made.
ROLAND SUTHERLAND
DEPUTY JUDGE PRESIDENT
GAUTENG, JOHANNESBURG
APPEARANCES
Date of hearing: 18 September 2024
Date of Judgment: 19 September 2024
For the Plaintiff: Adv. J.L. Khan instructed by Andrew Meldrum Attorneys Inc.
For the Defendant: Mr. E.M. Mdlovu instructed by State Attorney