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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(MPUMALANGA DIVISION, MBOMBELA)

 

CASE NO: 978/2021

REPORTABLE:NO

OF INTEREST TO OTHER JUDGES:YES

REVISED: YES

13/01/2023

 

In the matter between:

 

JACO SCHLEBUSH                                                                                                  Plaintiff

 

and

 

MEC FOR PUBLIC WORKS, ROADS AND                                                    

TRANSPORT: MPUMALANGA PROVINCE                                                         Defendant

 

J U D G M E N T

 

MASHILE J:

 

RECTIFICATION OF A PATENT ERROR

 

(a)     On 13 January 2023, this court handed down judgment in this matter directing the Defendant to:

 

(i)  Pay an amount of R550 000.00 to the Plaintiff;

 

(ii) Pay Interest on the amount of R550 000.00 at the legal prescribed rate atempore morae reckoned from 14 days after date hereof to date of payment;

 

(iii)            Furnish the Plaintiff with a Certificate in terms of Section 17(4)(a) of the Road Accident Fund Act, 56 of 1996, as amended.

 

(b)     The Court also granted absolution from the instance in respect of loss of past and future loss of earnings and damage to property. Lastly, the court ordered the Defendant to pay the costs of the Plaintiff. Shortly thereafter, Counsel for the Plaintiff alerted this Court to the patent error that it has made in respect of the Certificate in terms of Section 17(4)(a) of the Road Accident Fund Act, 56 of 1956, as amended.

 

(c)     The Court should not have made any reference to the Certificate because the Road Accident Fund was never a party in this case. The correct order should have directed the MEC to pay the anticipated future medical costs of the Plaintiff as set out in the report of the Orthopaedic Surgeon. To this end, I have inserted a new paragraph 31 dealing with future medical expenses of the Plaintiff. I have also substituted the order that referred to the furnishing of the Certificate to the Plaintiff by the Road Accident Fund for the Defendant.

 

INTRODUCTION

 

[1]      This is a damages claim arising from injuries sustained by the Plaintiff on 31 May 2020 when the motorbike that he was riding along R40 road allegedly hit a pothole and slipped. In that process, his protective clothing was damaged and he suffered bodily injuries for which he was treated at the Nelspruit Medi Clinic. Believing that the Defendant (“the MEC for Public Works)” was responsible for the road infrastructure, maintenance and the erection of appropriate road signs within the Province of Mpumalanga warning road users of prevailing dangerous conditions on the road, he instituted this damages action against the MEC for Public Works.

 

[2]      Notwithstanding the issuing and service of the summons upon the MEC for Public Works, the matter remained undefended when it served before this Court on 25 April 2022. Following the accident, the Plaintiff was conveyed to Nelspruit Medi Clinic where, on arrival, a diagnosis of fracture of the scapular was made and the following treatment administered:

 

2.1    Emergency treatment;

 

2.2    Pain medication;

 

2.3    Radiological studies;

 

2.4    Acromioclaviclar joint reconstruction.

 

The Plaintiff is said to have continued to take further treatment at the same hospital and attended rehabilitation as an outpatient, which I understood to be enduring on the date of hearing of the case.

 

[3]      No application for separation of issues as envisaged in Uniform Rule of Court 33(4) was brought consequently it proceeded on both merits and quantum. The Plaintiff testified in support of his own claim and thereafter called three expert witnesses, one being a reconstruction accident expert and the others, on the injuries sustained by the Plaintiff and their sequelae. Dr Khanyile, an Orthopaedic Surgeon, deposed to an affidavit confirming the contents of his report. Satisfied with the contents of the report, the Court dispensed with the need of his testimony and proceeded to admit the report into evidence.

 

EVIDENCE

 

[4]      The evidence of the Plaintiff is that he is a fourty-year old self-employed paintless dent remover (“PDR”) and a motorbike mechanic. On 31 May 2020, he was part of a group riding motorbikes travelling down Bulembu Pass along R40 in or around the area of Barberton. While so descending and on the second last sharp bend to the left he leaned into the corner where his motorbike hit and went over a pothole. In consequence, he lost control of the motorbike. The motorbike then skidded across the road surface to the other side during the process of which he suffered injuries to his shoulder and arm.

 

[5]      He stated that he could not avoid the pothole as he was travelling on the left side of the road. The sharp left turn concealed the dangerous area where the pothole was located. Moreover, there were no warning signs cautioning motorists of the danger on the road ahead. He testified further that almost a month prior to the hearing of this case, he had accompanied other travellers by motor vehicle along the same route when he observed that the pothole that had caused his accident was then wider and could pose even more serious danger to other road users.

 

[6]      The Plaintiff further told the Court that he was conveyed to Nelspruit Medi Clinic by ambulance. He was admitted, taken to x-rays and then to theatre for performance of a procedure on his left shoulder to repair the fracture on his clavicle. Four days thereafter, he was discharged but continued to attend physiotherapy and uses pain medication.

 

[7]      His left shoulder has not been restored to its pre-accident condition because six weeks following his return to work:

 

7.1    He continued to experience pains in his left shoulder;

 

7.2    He remains unable to exert pressure on it like he did previously;

 

7.3    His left arm still experiences numbness making it difficult to use;

 

7.4    In consequence of the above, he found himself compelled to employed an assistant;

 

7.5    As a self-employed mechanic and a paintless dent remover, the above have caused him loss of customers and income.

 

[8]      Mr Corrie Stapelberg (“Stapelberg”) testified that he regarded himself as an expert in traffic collision investigation. His evidence was that on 12 October 2020 he received instructions to compile a report on the above accident. He said that he visited the scene of accident to conduct an inspection in loco. He took photographs of the size and location of the pothole. He testified that he observed that the pothole had been dug up in an attempt to repair it.

 

[9]      He said that the pothole was not a big hole in the road surface but rather an area of approximately fifty millimetres deep and approximately two comma three meters long and approximately one comma five to two metres wide, stretching from the left side towards the road centre. There was another pothole, which was narrower measuring approximately half a metre wide and about two metres long. This pothole, he testified, was deeper than the first and curved with the road to the left.

 

[10]      Stapelberg found that the front tyre of the motorbike slid after hitting and riding over the first pothole. It then hit the second narrower but deeper pothole, which caused the Plaintiff to fall off his motorcycle. Stapelberg’s further opinion was that the motor bikers travelling in front of the Plaintiff missed the pothole as motor bikers travel in a staggered fashion. The front motor biker to the centre of the road, the next to his left back and eventually the Plaintiff followed to their left and on the side where the pothole was located on the left side of the road surface.

 

[11]      Stapelberg testified further that the Plaintiff could not have done anything in the circumstances to avoid the pothole. According to Stapelberg, the Defendant was solely negligent for the accident and the resultant injuries to the Plaintiff, damage to his motorbike and protective clothing.

 

[12]      Ms Nkabinde (“Nkabinde”) is an Occupational Therapist who also assessed the Plaintiff following which she compiled a report on 14 May 2021. She described the purpose of the report as being to set out the Plaintiff’s residual work capacity, the impact of the injuries he sustained in his daily living, leisure and re-creation. When she evaluated the functional capacity of the Plaintiff, she stated that she found that the Plaintiff experienced increasing pain intensity and discomfort of the left shoulder.

 

[13]      Nkabinde states in her report that following the accident, the Plaintiff continues to experience limitations when engaging in tasks that require heavy load handling. Furthermore, she states that the Plaintiff has reported to her that he finds it hard to involve his left arm in tasks requiring untiring movement of his left shoulder. Nkabinde further said that functionally, she estimates that weight handling activities will always pose a challenge to the Plaintiff. In consequence of these restrictions brought about by the accident, she concludes that the Plaintiff has suffered long term functional impairment. As such, the injuries have left him greatly compromised and vulnerable.

 

[14]      Ms Nkambule (“Nkambule”) is an Industrial Psychologist. She testified that she assessed the Plaintiff on 14 May 2021. Her testimony was that she received certain reports and documents being the Plaintiff’s personal information, clinical records, medico legal report from Dr Khanyile the Orthopaedic Surgeon and medico legal report from Miss Nkabinde the Occupational Therapist. She said that the Plaintiff complained of intermittent pain and numbness in his left shoulder and arm.

 

[15]      The Plaintiff had advised her that he returned to work after six weeks and found himself forced to employ an assistant. During the evaluation of employability and earning potential, she used earnings scenarios reported to her albeit without having had sight of actual payslips or accountants’ confirmation of income. The Plaintiff informed her that payments received from customers for services that he had rendered were mostly in cash.

 

[16]      The Plaintiff advised her that prior to the accident his income amounted to R32 000.00 in all per month. He further told her that he could only earn a month income of R25 000.00 after the accident. She said that the Plaintiff was employed in the semi-skilled sector and that his earnings were in the upper quartile of artisans. The suggested earnings as per the quantum yearbook for this level and skill was R374 000.00 per annum, which translates into R31 166.00 per month. She added that as a self-employed individual, it was probable that the Plaintiff would work until the age of 65 or 70.

 

[17]      She answered in the affirmative when asked if she was happy with the information that the Plaintiff’s business and salary were largely cash based. She also appeared not perturbed that the Plaintiff did not have salary or pay slip advices. She had a bank statement without an affidavit confirming his salary. She added that she expected the Plaintiff to lose customers. Consequently, his situation would not be the same as pre-accident. Nkambule stated that the Plaintiff’s work capacity has been considerably affected by the injuries sustained. That said, she recommended that a higher than normal contingencies be applied to counter the imponderables.

 

[18]      Mr Mavimbela (“Mavimbela”) was engaged as an Actuary to calculate the loss suffered by the Plaintiff. The calculations that he was required to make were based on the report of the Industrial Psychologist, Nkambule. Mavimbela explained his calculations of past and future loss of income, the basis for the calculations, assumptions and methodology and how the amounts of nett loss were calculated.

 

[19]      Mavimbela further said that he has considered the 25% adjustment future loss values for the employment of the assistant. Given his calculations, the actuarial assumptions and projections, the Plaintiff suffered past loss of income in the amount of R138 513.00 and future loss in the amount of R2 653 327.00. The amounts do not include contingencies. Following the testimony of the Industrial Psychologist, it transpired that the basis of the calculations of Mavimbela were incorrect. He confirmed that as a result of this, his figures would require adjustment to be in line with the information contained in the report of the Industrial Psychologist.

 

ISSUES

 

[20]      The Court is required to determine whether or not the Plaintiff has shown that the MEC for Public Works was negligent by not repairing the pothole in the road and/or erecting road signs to warn road users of the dangers posed by the pothole. In the second place, whether or not the Plaintiff has proved his loss of income.

 

LEGAL FRAMEWORK AND APPLICATION

 

LIABILITY

 

[21]      It is trite that the onus to allege and prove rests on the Plaintiff. This is so even in those instances where a claim for damages is not defended, as is the position here. The version of what transpired on 31 May 2020 is contained in the evidence that the Plaintiff levied before this Court. For purposes of this Court the testimony presented by the Plaintiff is sufficient to constitute a prima facie case. That case is that the responsibility of building, maintaining road infrastructure and putting up road signs cautioning road users of the dangers of potholes rested with the MEC.

 

[22]      The MEC’s failure to live up to that responsibility amounted to negligence in consequence of which the Plaintiff hit and went over a pothole, his motorbike slipped, got damaged and the Plaintiff sustained injuries in the process. The Plaintiff has furnished proof of service of the issued combined summons on the MEC. The service was met with complete silence. Even on the date of hearing, the MEC was neither in Court nor was he represented.

 

[23]      In the face of all the above, the MEC chose not to defend the claim. The Court find itself obliged to accept the version of the Plaintiff as there is no other different version that is placed before Court by the MEC. The MEC’s lack of response to the combined summons is exceedingly disheartening especially because any award of the amount claimed that might be made, will have to come out of the public purse. In the circumstances, the Court is obliged to find that the MEC is hundred percent liable for the manner in which the accident occurred.

 

QUANTUM

 

PAST MEDICAL EXPENSES

 

[24]      It would be convenient to begin with the subject concerning the Plaintiff’s claim for past medical expenses. The Plaintiff has abandoned his claim for past medical expenses in the amount of R450 000.00. The Court was advised that all medical expenses were settled by the Plaintiff’s medical aid and not by him. Accordingly, any claim relating thereto accrues to the medical aid scheme concerned and not the Plaintiff.

 

PAST AND FUTURE LOSS OF EARNINGS

 

[25]      Insofar as loss of earnings is concerned, the Plaintiff advised that before the accident he was self-employed as a motorbike mechanic and a PDR earning a monthly salary of R32 000.00. Following the accident and as a result of his shoulder injury, it became apparent that he would not cope at work. He then employed an assistant who was causing him 25% of his monthly salary or R8 000.00 per month. The Plaintiff’s salary therefore reduced to R24 000.00 as a direct result of his left shoulder injury.

 

[26]      It was argued on Plaintiff’s behalf that he also lost customers as a result of his injuries. This argument is staggering in the face of the continuing employment of the assistant. One does not add or retain labour if the outcome is escalation of costs. Besides, no reasons have been furnished why the Plaintiff lost customers and that as a result his income has declined further. I am somewhat baffled why loss of customers was brought up as it makes no difference to the Plaintiff’s claim.

 

[27]      More problematic for this Court is in fact the report of the Industrial Psychologist. It appears that the Industrial Psychologist accepted all that she was told by the Plaintiff without any collateral information. Firstly, there is no bank statement that shows that the Plaintiff had a constant monthly income of R32 000.00 as claimed. Secondly, The Industrial Psychologist would not even request production of accounting and tax records to verify the Plaintiff’s salary. The fact that he dealt with cash most of the time would not have precluded him from paying tax to the Receiver or depositing cash generated through the business into his bank account or that of the business.

 

[28]      It is easy for anyone to claim that his or her earnings were at a certain level as long as no proof is required. Surely, as a self-employed person, the Plaintiff would have engaged the services of an accountant to prepare his books and probably take care of his tax matters. To say that he had none of this is difficult to imagine. Additionally, the Industrial Psychologist also seem to have accepted, without any form of evidence, that the Plaintiff worked as a motorbike mechanic and PDR.

 

[29]      This is evidence that needed corroboration. The fact that the Plaintiff chose not to call anyone or to present documentary evidence in support of his case leaves this Court befuddled. I say this mindful of the provisions of Section 16 of the Civil Proceedings Evidence Act, 25 of 1965 that judgment may be given in any civil proceedings on the evidence of any single competent and credible witness. See also the case of Daniels v General Accident Insurance Co Ltd[1]. While the Plaintiff might be competent, his evidence on his occupation and income is highly improbable and should have been validated.

 

[30]      The Industrial Psychologist’s acceptance that the Plaintiff was a semi-skilled employee without any satisfactory information confirming the allegation cannot find favour with this Court. In view of the conclusion that the Plaintiff has failed to establish that he was semi-skilled, self-employed as a motorbike mechanic, PDR and that he was earning R32 000.00, the question of contingencies does not arise. For what it is worth, I may add that had the earnings been properly proved, I would have been disposed to apply higher contingencies as suggested by both the Industrial Psychologist and the Plaintiff’s counsel.

 

FUTURE MEDICAL TREATMENT

 

[31]      Insofar as future medical treatment is concerned, Dr Khanyile predicts that the Plaintiff will benefit from future surgery which, he states, will relieve his symptoms. Additionally, the Plaintiff may be managed with Physiotherapy and pain medication. The Plaintiff might need to consult with various medical practitioners from time to time. These practitioners comprise general practitioners, Orthopaedic Surgeon and Physiotherapist. He estimates that the overall amount that he might require to manage his future treatment is R300 000.00. In the absence of evidence to the contrary, I am obliged to accept the amount as being correct.

 

GENRAL DAMAGES

 

[32]      Turning to the issue of general damages. From perusal of the reports of the various experts, it is evident that the injuries sustained by the Plaintiff are not only serious in nature but have also left him markedly disabled. He will, for the remainder of his life, have to live with the fact that he cannot engage his left arm in strength-demanding activities. I Have not been supplied with comparable cases. My research on shoulder injuries revealed that it is difficult to find a case that is sufficiently close to the current.

 

[33]      I note that the Plaintiff, without any citation of cases that are to some extent analogous, claims an amount of R1 500 000.00 for general damages. In the matter of NH v Road Accident Fund [2]the Court awarded the Plaintiff an amount of R1 199 000.00 for general damages in 2020. The injuries were by far severe than in casu. They were described as severe head injury; occipital lacerations; bilateral femur fractures; lung and cardiac contusion; left intertrochanteric femur fracture; abdominal injuries with mesenteric tear and avulsion of splenic blood supply; right hemiplegia; multiple abrasions and lacerations.

 

[34]      He spent about two months in the ICU and a month and three weeks in a general ward. During that period he had numerous surgeries, laparotomies for spleen removal and bowel resection. He also had Orthopaedic Surgery to repair the fractures of the femurs. For the most of his hospitalisation he was in a critical condition. His condition was exacerbated by respiratory and heart complications. He underwent blood transfusions. He was placed on mechanical ventilation by way of endotracheal tube and later tracheostomy on several occasions.

 

[35]      He experienced and still suffers from pain in the stomach area, back, right upper arm, shoulder, as well as, occasional headaches. The pains will persist in invariable degrees and for a long time in the future. The brain injury is so severe that it has rendered the Plaintiff both physically and mentally disabled. As a consequence of the brain injury, he can no longer manage his personal, financial and legal affairs and he is also at risk of developing epilepsy. Prior to the accident, he enjoyed hunting with his dogs and doing some gardening.

 

[36]      The Orthopaedic injuries have curtailed the enjoyment of his amenities in that, he has constant weakness of the limbs. He walks with difficulty and very slowly. He also can no longer stand on one leg and has a right-sided limping gait. He has been left with permanent scars on the occipital area, the diaphragm down to the pubic area, the belly button and operation scars from the hips down to the knees on both legs and the right upper arm. He also has bed sore scars on the head and right buttock.

 

[37]      In the case of Ripinga against Road Accident Fund [3]this Court awarded an amount of R950 000.00 for general damages in circumstances where the injuries were somewhat similar to those of NH v Road Accident Fund supra but nonetheless less severe. Ripinga supra was diagnosed with injuries to his left shoulder, multiple rib fractures on the left-hand side, head (subdural haematoma) and myocardial and lung contusion. Following this collision, Ripinga was admitted and detained at the Medi Clinic at Mbombela where he was treated until discharged. Although diagnosed with a heart condition that resulted in low heart rate, Ripinga still retained his employment and experts were not agreed that he would require early retirement. That said, they were ad idem that his quality of life had declined significantly.

 

[38]      By comparison, the Plaintiff in casu has been diagnosed with the fracture of the scapular. The following treatment was administered:

 

38.1  Emergency treatment;

 

38.2  Pain medication;

 

38.3  Radiological studies;

 

38.4  Acromioclaviclar joint reconstruction.

 

[39]      Although the Plaintiff continued taking treatment after the accident and attended rehabilitation as an outpatient, his injuries and sequelae cannot attract an amount close to that awarded by this Court in Ripinga. Having regard to Ripinga and NH supra, I have come to the conclusion that general damages in the amount of R550 000.00 in this instance will be proper.

 

[40]      Insofar as damage to property is concerned, it has been alleged that damages were sustained as a result of loss of property for which an amount of R50 000.00 is claimed. The damage to property is represented by the damage to the motorbike and motor biking paraphernalia. Disappointingly, no documentary evidence was submitted relating to what it will cost to repair the motorbike or, if it will not be economic to repair, what the salvage value is? Additionally, no evidence was led on how much it will cost the Plaintiff to replace the motor biking outfit. An appropriate order in this regard will therefore be absolution from the instance.

 

CONCLUSION

 

[41]      Insofar as liability is concerned, the version of the Plaintiff is not challenged and must therefore stand. Regarding quantum, in particular past and future loss of income, the Plaintiff has not proved firstly, that the Court can accept that he is semi-skilled. The allegation that he has attained N4 is bald without any documentary evidence like a certificate representing proof of acquisition. There is also no proof that the Plaintiff was or is running his own business where he works as a PDR or motorbike mechanic.

 

[42]      Absolution from the instance on:

 

42.1  past loss of earnings;

 

42.2  future loss of earnings;

 

42.3  loss and/or damage to property;

 

Would be a suitable order.

 

[43]      In the result, I make the following order:

 

1. The Defendant is liable to the Plaintiff in the amount of 850 000.00 made up as follows:

 

1.1    Future medical treatment R300 000.00;

 

1.2      General damages R550 000.00.

 

2. Interest on the amount of R850 000.00 at the legal prescribed rate of interest atempore morae reckoned from 14 days after date hereof to date of payment;

 

3. Absolution from the instance is granted in respect of loss of past, future loss of earnings and damage to property;

 

4. The Defendant is directed to pay the costs of the Plaintiff.

 

B A MASHILE

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA

 

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 13 January 2023 at 10:00.

 

APPEARANCES:

 

Counsel for the Plaintiff:                                                WP Meintjes

 

Instructed by:                                                                  Meintjes and Khoza Attorneys

 

Counsel for the Defendant:                                           No appearance

 

Instructed by:                                                                   

Date of Judgment:                                                           13 January 2023

 

 

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