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Edward v Road Accident Fund (682/2021) [2024] ZALMPTHC 6 (29 January 2024)

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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

(LIMPOPO LOCAL DIVISION, THOHOYANDOU)

 

CASE NO: 682/2021

REPORTABLE: YES/NO

OF INTEREST TO THE JUDGES: YES/NO

REVISED.

Date: 2024/01/29

 

In the matter between:


 


MALILELE KHATHUTSHELO EDWARD

PLAINTIFF

 


And


 


ROAD ACCIDENT FUND

DEFENDANT

 

JUDGMENT

 

MONENE AJ

 

[1]      The plaintiff instituted action proceedings against the defendant for damages arising from a motor vehicle accident which occurred on 16 December 2019. The plaintiff was a passenger at the time of the accident.

 

[2]      The merits in this matter were disposed of per court order dated 21 February 2022 in terms of which the defendnt is 100 percent liable for the plaintiff’s proven damages.

 

[3]      Future medical expenses are not a subject of dispute following an accepted offer of settlement made by the defendant.

 

[4]      What lends itself for determination before me are the general damages and  loss of earnings.

 

[5]      This is yet another matter where the defendant has not bothered to file expert reports to assist the court in arriving at a just compensation amount. Hence the matter served before this court as a default judgement application on both general damages and loss of earnings.

 

[6]      In brief and for context the evidence available is to the effect that the plaintiff, who was a passenger in a motor vehicle at the time of the accident, suffered the following physical injuries from the motor vehicle accident:

 

6.1     Mild head injury and scalp laceration

 

6.2     Soft injuries to the thoracic spine, the neck and lower back.

 

6.3     Right shoulder injury

 

6.4     Left knee injury

 

6.5     Post-traumatic stress disorder

 

[7]      It being so that the defendant has characteristically not filed any expert reports the plaintiff sought and was granted leave by this court to proceed in terms of Uniform rules 38(2) and 39(1) the trite effect of which was the admission of the plaintiff’s expert witnesses’ evidence under cover of affidavit and the plaintiff permitted to prove his case, in the defendant’s absence so far as the burden lies on him.

 

[8]      Pursuant to discharging his onus regarding his general damages and loss of earnings the plaintiff led evidence which can best be stated as follows in sum:

 

8.1.    Dr D Chula, a neurosurgeon’s evidence was that the sequealae of the plaintiff’s injuries was memory impairment, anxiety nd post-traumatic stress disorder. It was the doctor’s further testimony that the plaintiff continues to suffer from chronic neck pains and thoracic spine pains and further that the plaintiff had long-term mental deficiencies arising from the injuries suffered in the accident. The doctor’s expert opinion on cognitive deficiencies gained traction with corroboration from Clinical Psychologist MB Koko whose testimony was to the effect that not only does the plaintiff have a neurocognitive disorder arising from traumatic brain injury but he also suffers from poor problem solving skills and an inability reason abstractly.

 

8.2     The major relevant take home from Dr Netshiolongwe, a plastic surgeon’s evidence was that the plaintiff had, flowing from the accident,permanent serious disfigurement which qualifies him for general damages as his daily living has been gravely interfered with

 

8.3     Lungile Langa, an industrial psychologist’s evidence was to the effect that following the accident, the plaintiff, a grade 9 certificate and security officer certificate holder a the time of the accident, will have difficulties functioning in the open labour market as an unequal competitor. It was his further evidence that that the accident had negatively affected the plaintiff’s work capacity as his general emotional, physical and cognitive capacity has been severely compromised.

 

8.4     R S Mathegu, an occupational therapist, testified that the accident has negatively impacted on the plaintiff’s occupational performance because he cannot lift heavy objects at all, something which he did with ease, as a blue-collar employee, prior the accident. This witness’ evidence is on all fours with that of the industrial psycholigist on the point of the plaintiff going to be disadvantaged by the sequelae of the injuries and going to be competing unequally.

 

8.5 Taking counsel from the expert opinions of the above expert opinion evidence Tsebo Actuaries provided expert evidence on the computation of past loss of income and future loss of earnings postulating a total loss of R1 243 628.00 in the first scenario which was premised on the plaintiff being an unskilled worker and a total loss of R1 831 302.00 in the second scenario which postulation arose from if the plaintiff had proceeded to be a security guard, a  job he qualified for prior the accident. In both scenarios the actuaries had made allowances for contingencies of 5 percent for past loss of income and 15 percent for future loss of income  

 

[9]      I see no reason why I should ignore or make light of the fact of the plaintiff having acquired a security guard qualification prior the accident. He had the qualification and same would, but for the accident, have been a factor in his employment chances and earning capacity. Accordingly, I will have needed no serious nudging towards accepting the second scenario regarding loss of income. However, in the plaintiff’s heads of argument, counsel has prayed for an award of loss of earnings in the amount of R1 431 302.00 arguing it to be the mean amount between the first and second scenarios postulated by the actuaries. I will indulge counsel on this submission.

 

[10]         Indeed the test for assessing loss of earnings can 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 said:

 

         “ 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...”

 

[11]         I may be without the benefit of soothsayers and prophets as I make a prediction of a future loss in the present day but at least I have the benefit of experts’ opinions to assist me in that speculation and make it one guided by education. To deviate therefrom I need something better or a counterview which, as stated supra, is lacking in casu.

 

[12]          As regards general damages, it is so that the now absent defendant earlier conceded the seriousness of the plaintiff’s injuries when it tendered an offer of settling general damages which was rejected by the plaintiff. There is thus, in my view, no impediment to this court determining general damages. 

 

[13]    As l determine general damages, I do so alive to the trite principle that previous awards are guidelines which need not be slavishly followed but should be given due regard to, if only to ensure some consonancy in similar matters. (See NK obo ZK v MEC for Health, Gauteng ZASCA 13(15 March 2018).

 

[14]    Indeed on this score the court in Protea Assurance Co Ltd v Lamb 1971(1) SA 530(AD) at 536 stated that comparable cases should be used to afford some guidance towards assisting the court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases.

 

[15]    I find the reference the plaintiff made in his heads of argument to Vukeya v Road Accident Fund 2014(784) QOD where a semi-skilled blue-collar worker who had suffured broadly similar injuries and sequelae was in 2014 awarded general damages of R330 000.00 which translates to roughly R730 000.00 today, to be most helpful.

 

[16]    In his heads of argument the plaintiff has prayed for general damages of R800 000.00. This was a sober submission scaling down massively from the R4 million amount which had initially been pleaded in the particulars of claim. 

 

[17]    I do not have to unnecessarily burden this judgement with long erudite- sounding phrases about the sequelae of the injuries in the context of the plaintiff’s age and employment history. The summary of expert evidence led before me above, which evidence I have no reason nor inclination to deviate from, is in my view sufficient.

 

[18]    Accordingly, I am persuaded to award the plaintiff general damages as prayed for in his heads of argument and to order payment of loss of earnings in accordance with what the plaintiff has prayed for in his heads of argument. As already alluded to supra I would not have been averse to award the plaintiff in accordance with the second scenario postulated by the Tsebo Actuaries already reflected upon supra. I have no reason not to order a section 17(4)(a) undertaking.

 

[19]    In all the above premises the following order is made:

 

19.1.   The defendant shall pay the plaintiff a total amount of R2 231 974.00 being damages suffered by the plaintiff arising from a motor vehicle accident which occured on 16 December 2019. This amount arises from the sum of R800 000.00 for general damages and R1 431 974.00 for loss of earnings.

 

19.2.   The amount mentioned in order 18.1 above shall, within 180 days of this order, be paid into the trust account of NKP Manamela Attorneys Inc, the details of which are the following:

 

Bank: FIRST NATIONAL BANK

 

Account No: 6[…]

 

REF:  MVA/15/20

 

Link No: 505 0740

 

19.3    In the event of the aforesaid amount not being paid beyond the 180 days referred to in order 18.2 above, interest at the prescribed rate of interest shall immediately begin to run until date of final payment.

 

19.4    The defendant is ordered to pay all the plaintiff’s costs on a High Court scale which costs shall include the costs attendant to securing expert reports and their evidence and the costs of counsel.

 

19.5    The defendant shall furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 in respect of the costs of future medical costs arising from the motor vehicle accident in casu.

 

M S MONENE

ACTING JUDGE OF THE HIGH COURT,

LIMPOPO LOCAL DIVISION, THOHOYANDOU

 

APPEARANCES


 


Heard on

:  19 October  2023               

 


Judgment delivered on

:..29.. January 2024     

 


For the Plaintiff

:  Adv. M B   Moifo

 


Instructed by

:  NKP Manamela Attorneys Inc

 



:  TEL: 015-291 1174

 



:  Email: civil@nkpattorneys.co.za