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IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)  

 

 

CASE NO. 4925/2019

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

12/12/23

 

In the matter between:

 

GIVEN KGOETEGO	PLAINTIFF
And
ROAD ACCIDENT FUND	DEFENDANT

The hearing of this matter was conducted virtually using MicroSoft Teams

JUDGEMENT

BAM AJ

1. This is a claim for damages against the Road Accident Fund. The plaintiff was a passenger in a motor vehicle that was involved in a collision with another on 19 April 2019. It is alleged that the accident was caused by the sole negligence of the driver of the other vehicle, such negligence being described in the usual general terms. The merits have been settled 100% in favour of the plaintiff. The accident report sketch indicates that the collision took place in the middle of the road. General Damages and Loss of earnings remain in dispute.

 

GENERAL DAMAGES

2. The Plaintiff relied on experts to prove his damages under this heading while the pre-trial minutes reflect that the defendant, having not filed any expert reports thus far, would rely on the plaintiff’s expert reports and on cross-examination of the witnesses. The initial all-inclusive claim amount was the sum of R2 000 000 but an amendment to the Particulars of Claim was subsequently affected in terms of Rule 28 in which that amount was increased to R5 047 827.00 based on the actuarial report.[1]

 

3. The Orthopaedic surgeon, Dr NC Hadebe, consulted with the plaintiff on 29 October 2020. He testified that he noted that the plaintiff had lost consciousness at the scene of the accident and only regained it at the hospital. According to the Life Midmed Hospital records, the plaintiff, who was 22 years old at the time, had sustained the following injuries:

3.1 Fracture of the left femur

3.2 Left common peroneal nerve injury – the nerve supplies movement and sensation to lower leg, foot, and toes.

3.3 Fracture on base of skull

3.4 Bilateral hemothorax - collection of blood between the chest wall and lungs.

 

4. He noted further that the plaintiff received the following treatment:

4.1Clinical and radiological examination

4.2 Computer tomography of the brain and neck

4.3 Ventilation in ICU

4.4 Wound debridement and external fixation of left femur and tibia (which was later removed)

4.5 Intramedullary nailing of the left femur and tibia

4.6 Antisepsis and analgesics

4.7 Rehabilitation and crutches

4.8 After discharge from hospital, the plaintiff made follow up doctor’s visits and received physiotherapy as an outpatient. The plaintiff also told him that he relies on pain medication to manage the pain.

 

5. The expert testified further that according to the plaintiff, this was his first accident, and he had no prior surgeries and no pre-existing chronic condition. He enjoyed playing soccer, and he had just received a certificate after completion of training to operate a TLB and Grader. When the accident happened, he was still waiting for a job placement. The opportunity has now passed due to the injuries resulting from the accident. His highest qualification was grade 12.

 

6. Regarding symptoms, the expert testified that the plaintiff presented with the following health issues:

6.1 Pain in the left thigh, knee, and leg, which is aggravated by prolonged walking, standing, and cold weather.

6.2 Painful lower back which is aggravated by prolonged walking, standing and cold weather.

6.3 Left drop foot

6.4 Headache

 

7. On examination, the expert observed a deformity in the form of a left drop foot with a resultant abnormal gait. The plaintiff had nine scars of different dimensions on his left side starting from the buttocks down to the foot, one scar each on the right and left chest and one on the right eyelid - 12 in all. The expert opined that the scarring constituted a 6% WPI.

 

8. In his own assessment, the expert had diagnosed a non-union fracture of left femur, fracture of left tibia/fibula, lumbar spine soft tissue injury, and peroneal nerve palsy with severe motor deficit. The overall WPI in this regard was 30%. The combined values, with the scarring, amount to 36% resulting in an overall 34% WPI.

9. The expert further opined that the plaintiff suffered severe acute pain for about 5 weeks following the accident. He still suffers and will continue to experience pain on the left thigh, knee and leg which can be managed with analgesics or surgery.

 

10. Dr Hadebe testified that he had also completed the RAF 4 form (Serious Injury assessment report) in terms of which he provided the following information:

At paragraph 4.10:   Confirmed that the plaintiff had reached Maximum Medical Improvement (MMI).

At paragraph 5.1: Plaintiff has suffered serious long-term impairment or loss of a body function.

At paragraph 5.2: Plaintiff has suffered serious disfigurement.

 

11. Mr Mhlanga on behalf of the defendant wanted to know about the professional practice experience of the expert, which was 5 years, as well as confirmation of registration with the HPCSA, which the witness did. He requested explanation of the medical terminology used, such as “drop foot” and “bilateral haemothorax”[2], which the witness explained in simple language. He also wanted to know from the expert, whether in his view, the injury had healed, to which the witness responded that only the neurosurgeon can give a definite answer.

 

12. The Occupational Therapist, Mr Simon Baloyi consulted with the plaintiff on 29 October 2020 and testified that amongst his other assessments, he was to determine whether there was a possibility of a full recovery from the injuries in future. He noted the injuries as diagnosed by the hospital and observed by the orthopaedic surgeon. He also noted the same complaints as those provided by the plaintiff to Dr Hadebe in addition to issues of low self-confidence, feelings of anger about what happened as well as anxiety when travelling in a vehicle. The plaintiff also informed him that he struggles to find shoes that fit because of his left foot, which is often painful. He also could not sleep on his left side for long and experienced pain in cold weather.

 

13. His opinion was that had the plaintiff been employed as a TLB operator, his job would have entailed medium demands that require the ability to lift up to 25 kg in weight.[3] He would have continued to work in the job until retirement.[4]  His assessment revealed that he was now only suited to light work, not medium to heavy as before. Operating a TLB falls within medium types of work and the injuries have imposed some limitations to his capacity in this regard. Light work involves exerting up to 20 pounds of force occasionally, and / or up to 10 pounds of force frequently, and / or a negligible amount of force constantly to move objects. If he were to go to work as a TLB operator he would work with difficulty due to pain.

 

14. In his report, the expert had found no evidence of any psycho-cognitive problems affecting the plaintiff – he was functionally and emotionally alert and oriented. His social circle of friends had not diminished, and his interpersonal skills remained intact. He could perform most of the daily activities of living but would experience pain with exertion. The accident has, however, had a significant impact on his job options[5] as it has excluded him from competing for jobs requiring heavy lifting, elevated work at heights, using both upper extremities, working outside in cold temperatures, having to stand and/or walk for a prolonged period, and climbing heights (ladders). His physical endurance has declined due to chronic left leg pain, chronic lower back pain, chronic chest pain and headaches.

 

15. Mr Mhlanga wanted to know from the witness whether the TLB training did not open up additional opportunities for the plaintiff as there is currently a high demand for heavy machinery. He further suggested that the plaintiff could also work on construction projects with a bit of alternative training. The witness responded that the plaintiff would still struggle to perform 100% due to the drop foot as well as diminished sensation on the left leg.

  

16. The Neurosurgeon, Dr MF Mkhonza, consulted with the plaintiff on 04 May 2022. He had the benefit of RAF 1 and 4 forms, hospital records and Dr Hadebe’s report. He focused on the following injuries: right lateral orbital wall fracture, skull base fracture and neck fracture (C4). He attributed the headaches and personality change “to the severe traumatic brain injury that was sustained during the motor vehicle accident”[6] hence the prolonged mechanical ventilation the plaintiff  received in ICU. Even though there is no evidence of cerebrospinal fluid leak, there is a chance that the plaintiff will develop post-traumatic meningitis. He also has a 17% risk of developing post-traumatic epilepsy. He concluded by deferring assessment and further opinion on the neurocognitive function, musculoskeletal injury and future employability to a clinical Psychologist, Occupational Therapist and Industrial Psychologist respectively. It is to be noted that the plaintiff was not referred to a clinical psychologist.

 

17. The above experts’ opinion can be summarized as follows, as submitted by counsel for the plaintiff Mr Nkgadima during the hearing; namely that:

17.1 The accident has resulted in moderate disruption of the plaintiff’s life through the loss of amenities.

17.2 He lives with chronic pain on his legs and lower back, and also with recurrent headaches.

17.3 He struggles to sleep and to perform basic selfcare tasks and chores.

17.4 He has suffered serious long-term impairment or loss of a body function as well as permanent serious disfigurement.

17.5 He won’t be able to use his skills as a TLB operator and thus has lost earning potential.

17.6 He cannot fulfil his leisure activities like play recreational soccer, jog, or do exercises.

17.7 He is currently unemployed.

 

18. Mr Mhlanga has argued that the chances of the plaintiff developing post-traumatic meningitis and epilepsy are negligible looking at the percentages suggested by the neurosurgeon. He requested that the failure by the plaintiff to consult the cardiothoracic surgeon as recommended by Dr Mkhonza should count in favour of the defendant as it means the sequelae is not serious. He would have cross-examined Dr Mkhonza regarding his findings on the skull injury, but he was not called to testify.

 

19. Though Mr Mhlanga reiterated the defendant’s prerogative to determine whether or not a claimant qualifies for general damages, he seemed to concede that this opportunity was no longer open at this point by proceeding to cite comparative case law in a bid to assist the court to arrive at a fair and reasonable award.

 

20. In Mgudlwa v Road Accident Fund[7] where the injuries sustained by the plaintiff had almost similar sequelae, save for a prognosis of a total knee replacement, the court awarded R300 000.00 for general damages.

 

21. In Abrahams v Road Accident Fund, the court awarded R500 000.00 for injuries not far removed from the ones under consideration herein. Open reductions and internal fixations were performed in three places, and there was also a minor head injury.

 

22. In Spyrou v Road Accident Fund[8], the court compared the injuries of the plaintiff to those considered in Mgudlwa supra and Sterris[9], which were more serious. It awarded R500 000.00 before 50% apportionment. Mathebula J restated the principle that awards for damages are determined using a flexible approach without adherence to strict rules. The court ought to consider broad generalisations and act with fairness in all circumstances.

 

23. I have considered the expert reports and testimony and agree with the defendant that the absence of expert opinion on the issue of post-traumatic headaches as well as mood swings should be taken to indicate that the conditions did not pose any serious long-term health and cognitive effects. The same can be said in respect of the chest injury.  In addition to the injuries and disfigurement, the plaintiff is said to have suffered loss of amenities for 12 weeks after the accident, which is understandable seeing that he had to be treated in ICU as well. Dr Hadebe opined that he suffered acute pain for 5 weeks. By the time he consulted with the occupational therapist, Mr Baloyi, in October 2020, he could perform most of the daily life activites. Fortunately, though, his life expectancy remains unchanged.[10] It is for this reason that I consider the amount of R600 000.00 to be a fair and reasonable compensation for general damages.

 

24. I wish to echo Mathebula J’s observations in Spyrou supra[11], that the defendant adopted “an armchair approach by simply pointing out some discrepancies or contradictions contained in the admitted reports of the (plaintiff’s) experts”. This is a common practice for the defendant not to file expert reports and the reliance on the plaintiff’s reports often leaves its legal representatives with no professional basis upon which to challenge same. It does not make for effective litigation. In most cases, the witnesses are excused because the defendant has admitted the reports, only to find out after the hearing that information that was being disputed could have been addressed through cross-examination.

 

LOSS OF EARNINGS

25. The Industrial Psychologist, Ms PG Baloyi assessed the plaintiff on 29 October 2020. She confirmed the contents of her report and testified that she used the plaintiff’s qualifications to estimate pre-accident potential earnings. She further testified that she referred to SA Talent.com to research the average income of a TLB operator. According to her, the plaintiff would have reached his maximum earnings at age 45.

 

26. She was also provided with proof of qualifications for grade 12 and of skills training for the operation of the TLB and Grader. With regard to the injuries and their sequelae, she had the benefit of information from the hospital records, the neurosurgeon’s report, the orthopaedic surgeon’s report as well as that of the occupational therapist. In her report, she stated that the plaintiff had informed her that the only form of employment he had engaged in before the accident was that of a casual farmworker contracted to install a fence around a farm during January to September 2018. He was paid at a rate of R180.00 per day. The expert accordingly concluded that there was not past loss of income suffered by the plaintiff.

 

27. Regarding future loss of income, the expert had considered the reports of the other experts and their opinions pertaining to future limitations on employability. In this regard she noted that: 

27.1 The plaintiff faced a 17% risk of epilepsy.

27.2 The chronic pain limits his choices when it comes to employment because he will not cope with prolonged standing, walking, sitting, lifting, or carrying heavy items, climbing heights, and working in inclement weather.

 

28. Considering pre-accident potential, the expert noted that the plaintiff had attained a qualification and skill which equipped him to find a job and was in fact awaiting placement. The TLB operator salary in South Africa starts from R157 500 per year at entry level up to R207 780 per year for the most experienced operators. The plaintiff would have reached his maximum earnings at age 45 and thereafter benefitted from annual increases until retirement at age 60-65, circumstances permitting.

 

29. Post-accident potential was measured in line with the limitations to the plaintiff’s physical and psychological wellbeing. He is at the risk of developing post-traumatic meningitis (1-20%) and post-traumatic epilepsy (17%). The chronic pain will negatively influence his employability due to loss of concentration and attention leading to low productivity or poor work quality. Since he cannot rely on his physicality to generate income, he will be overlooked in favour of his able-bodied counterparts. Despite this, the expert opined that the plaintiff might still find employment even though at a lower level than he might have participated without the injuries. He will however suffer loss of future income “the equivalence of his pre-accident postulated income”[12]

 

30. As with the other two experts that testified, Mr Mhlanga wanted to confirm the expert’s qualifications. He also wanted confirmation on whether the plaintiff’s training was finalised before or after the accident to which the witness mentioned March 2019, which was before the accident. He asked why a psychometric test was not conducted, and the witnesses responded that the doctor had probably seen no need for it.

 

31. The actuarial computations for loss of earnings were presented by Wim Loots who relied on the information contained in the Industrial Psychologist’s report. He used the salary range for TLB operator to illustrate the progression from entry (23 years 8 months) to career ceiling (45 years) up to retirement (62½ years). Since the plaintiff was not employed at the time of the accident and never got a job thereafter as per the report, the actuary concluded that he had suffered a total loss of earnings “and will continue to do so into the future” thus rendering post-accident income to be nil.

 

32. In the result, the pre-morbid earnings were set at R416 738 for past and R3 939 908 for future to which contingencies of 5% (-R20 836) and 20% 

(-787 982) respectively were applied. The total premorbid earnings amounted to R3 547 827.00 Having assumed that there would be no post-morbid income, there were zero earnings to which 0% in contingencies was applied. The total loss of earnings thus remained at R3 547 827.00.

 

33. It is trite that loss of earnings calculations are speculative, especially future loss of earnings. Actuaries rely on tables of statistics from surveys and studies in order to establish norms; representativeness and means from which they can make baseline predictions and apply them to a case in point. Uncertainties that are likely to have a bearing on the baseline are dealt with by way of contingency allowances which can be either positive or negative.[13] It is also trite that these computations are meant to assist the court in reaching a decision as to the fair and reasonable award of damages. They are not descriptive in any way and the court may depart from them and consider what is right under the circumstances.

 

34. In De Kock v RAF[14] the court, per Kgomo J stated the following with regard to actuarial calculations for loss of earnings:

“[21] The courts’ task of qualifying claims where the putative future loss of income or loss of earning capacity of young persons is to be quantified, is notoriously difficult and the judicial dilemma has been highlighted on many occasions.

[22] In approaching claims of this nature, the courts have always had open to it, two possible approaches, namely:

22.1 either that the judge makes a round estimate of an amount that seems to him to be fair and reasonable. That process is entirely a matter of guesswork – a blind plunge into the unknown.

Or

22.2 that the judge tries to make an assessment by way of mathematical calculations on the basis of assumptions resting on evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative.

[23] It is manifest that either approach involves guesswork to a greater or lesser extent. However, the court cannot for this reason adopt a non possumus attitude and make no award.

[24] The inherent difficulties and uncertainties therein manifest, it has generally been accepted that it is preferable to make an assessment based on actuarial calculations rather than to take a blind plunge into the unknown.

[25] I prefer this approach.”

 

35. I am reluctant to accept that the plaintiff will remain unemployed throughout his productive life. There are sedentary light jobs that he can engage in, especially with his qualifications. Even the Industrial Psychologist alluded to this possibility.[15] At his age, he can still heal sufficiently with proper treatment to be able to engage in some form of paid work which is not necessarily sympathetic employment. It would be appropriate therefore, in my view to make provision for this likelihood by reducing the overall loss by a further 10% to R3 193 044 (rounded up).

 

36. In the result, the defendant is liable to pay the plaintiff the amount of R3 793 044.00 made up as follows:

R600 000.00 in respect of general damages

R3 193 044.00 in respect of loss of earnings

The plaintiff’s attorneys have prepared a draft order which I shall endorse accordingly and make an order of court.

 

37. I therefore make the following order:

1. The defendant shall pay the plaintiff the amount of R3 793 044.00 (Three million seven hundred and ninety-three thousand and forty-four rand) in respect of general damages and loss of earnings.

2. The draft order attached hereto and marked “Annexure X” is hereby made an order of court.

 L J BAM

JUDGE OF THE HIGH COURT

MPUMALANGA (ACTING MIDDELBURG LOCAL SEAT)

 

FOR THE PLAINTIFF ADV. NKGADIMA

INSTRUCTED BY: NKGADIMA  ATTORNEYS

CONTACT DETAILS  013–2435902 nkgadimaattorneys1@gmail.com

 

FOR THE DEFENDANT:  MR N B MAHLANGA

INSTRUCTED BY: THE STATE ATTORNEY, NELSPRUIT

CONTACT DETAILS: 013-101 3722 / nkosingiphilem@raf.co.za

DATE OF HEARING: 21 AUGUST 2023

DELIVERED: 12 DECEMBER 2023

 

Handed down electronically by circulation to the parties’ legal representatives using e-mail.

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