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NORTH WEST HIGH COURT, MAFIKENG

CASE NO. 2891/2008

In the matter between:

SEABATA JAMES NKHOESA …...................................................................PLAINTIFF

and

ROAD ACCIDENT FUND ….....................................................................DEFENDANT

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JUDGMENT

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GUTTA J.

A. INTRODUCTION

[1] The plaintiff claims damages from the Road Accident Fund arising out of bodily injuries sustained in a motor vehicle collision which occurred on 01 July 2005 between a motor vehicle with registration number FBW 767 NW, driven by Mr Vusi Mike Ndlela (“the insured driver”) and the plaintiff, a pedestrian.

[2] The parties were represented by Adv Sekhukhune, for the plaintiff, and Adv Van der Westhuizen, for the defendant. On 03 May 2011, this Court granted an order inter alia separating the merits and quantum, and ordered the defendant to compensate 70% of the plaintiff’s proven or agreed damages.

[3] The matter before Court was for quantum only. The issues in dispute were loss of earning capacity and general damages.

[4] The defendant agreed to give an undertaking to furnish the plaintiff with a certificate in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of 1996 (“the Act”), in respect of future medical expenses.

[5] The defendant had not filed any expert reports and also agreed to accept the reports of the plaintiff’s experts.

[6] The plaintiff handed to the Court a bundle of documents consisting of the following expert reports:

6.1 Dr A.M. Matime – orthopaedic surgeon;

6.2 Dr’s Mkhabele and Indunah – diagnostic radiologists;

6.3 Dr L.F. Segwapa – specialist neurosurgeon;

6.4 Mr Narropi Sewpershad – clinical psychologist;

6.5 Ms Thandiwe Motsepe – occupational therapist;

6.6 Ms Esther Sempane – industrial psychologist;

6.7 Mr Alex Munro (Munro Consulting) – actuary.

[7] It is common cause between the parties that the plaintiff sustained the following injuries when the insured driver collided into the plaintiff, who was a pedestrian:

7.1 lacerations on the upper lip;

7.2 abrasions over the chest;

7.3 comminuted fracture of the left tibia and fibula;

7.4 head injury with a transient loss of consciousness and amnesia;

7.5 loss of three upper teeth;

7.6 contusion of the right thumb.

[8] The plaintiff was admitted to the Rustenburg Provincial Hospital on 01 July 2005. His left leg was treated by closed reduction and above the knee Plaster of Paris (“POP”) cast, and analgesia and anti-inflammatories were administered. He developed pneumonia and was treated with intravenous antibiotics. He was mobilized on crutches, discharged from hospital on 18 July 2005 and followed as an out-patient.

B. LOSS OF FUTURE INCOME

[9] The parties agreed on the pre- and post-morbid contingencies in the amount of 15% and 25% respectively.

[10] Before the collision, the plaintiff was employed as an underground plant operator in the mine. Following the collision, he lost his employment and was unemployed from 01 July 2005 until December 2007, when he secured employment as a miner.

[11] According to Dr Matime, the plaintiff should be able to continue in his present or similar occupation and there is no indication that he would need to retire earlier than normal as a result of the injuries.

[12] Dr Matime opined that the plaintiff was temporarily totally disabled for a period of five to six months. That he has no functional impairment as a result of the injuries sustained in the accident, except for intermittent pain in his left leg. Dr Matime estimated loss of work capacity at 2 to 3%.

[13] Mr Sewpershad, the clinical psychologist who assessed the plaintiff on 25 October 2011, stated that the plaintiff is currently employed as a security guard on a farm in Kokstad on a part-time basis. He opined that “in the light of the neuropsychological assessment findings, Mr Nkhoesa would be considered a vulnerable employee and an unequal competitor on the open labour market as a result of the combination of limitations in education and post-accident cognitive deficits, physical impairments and psychological difficulties (namely, depression and anxiety)”. He deferred to the occupational therapist.

[14] Ms Motsepe, the occupational therapist, assessed the plaintiff on 13 September 2009 and stated that the plaintiff will continue working in the open labour market as an underground miner winch operator, although his work is partially compromised by the injuries because of pain in his lower limbs and lower back, that he experiences and suggested that the plaintiff would cope better with sedentary duties.

[15] The industrial psychologist, Ms Sempane, opined that the nature of the injuries have left the plaintiff with limitations and will operate with restrictions.

[16] The Court relied on the actuarial report prepared by Alex Munro of Munro Consulting.

[17] Mr Munro estimated the total loss of income (being the difference between the past loss of income and future loss of income) in the amount of R288 700.00, calculated in the following manner:

17.1 Past loss of income – (difference between the past uninjured and past injured income);

17.2 Future loss of income – (difference between the capital value of the future uninjured and future injured income).

[18] Mr Munro drew his information and made his calculations from the experts’ reports. He assumed that the plaintiff’s income will increase in line with inflation, until retirement at age 62½.

[19] I have relied on Mr Munro’s calculation for future loss of income and applied the contingencies as agreed to between the parties as set out as follows:

A Future loss of income uninjured R418 800.00

Less 15% 62 820.00

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R355 980.00

B Future loss of income injured R356 000.00

Less 25% 89 000.00

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R267 000.00

A – B = R 88 980.00

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C. GENERAL DAMAGES

[20] According to Dr Matime, the plaintiff’s major complaints are:

20.1 recurrent pain in his left leg over the fracture sites;

20.2 the pain is aggravated by cold/cloudy weather;

20.3 he is unable to stand or walk for long periods;

[21] There is a palpable bone deformity over the left leg at the fracture area.

[22] Dr Matime stated that the plaintiff suffered acute pain for three to four weeks and has never been completely pain free since the accident. He suffered discomfort and inconvenience of an above the knee POP cast, with crutches for walking for three to four months.

[23] On the plaintiff’s prognosis and future morbidity, Dr Matime stated that the plaintiff recovered well from the head injury and there is no complication from the concussion. He lost three teeth and needs to consult with a dental surgeon. The laceration of the upper lip has healed with a permanent scar on the upper lip, which is not disfiguring. The fractures of the left tibia and fibula are united clinically and radiologically and there is no complication. The plaintiff was temporarily disabled for a period of five to six months. He has no functional impairment as a result of injuries except for intermittent pain in his left leg.

[24] Dr Segwapa, the specialist neurosurgeon, considered the plaintiff’s post-accident status and stated that the plaintiff has no neurophysical impairments, has neurocognitive and personality changes and his chances of epilepsy have increased by 3% for which the plaintiff will require anti-epileptic medication.

[25] Mr Sewpershad documented the plaintiff’s current complaints inter alia, as follows:

25.1 his hearing has been affected;

25.2 he has become forgetful;

25.3 he has pain in his right thumb and his right hand is his dominant hand;

25.4 he has ongoing pain and cramps on his left leg;

25.5 he gets tired very easily and needs to take breaks when walking long distances and at work after performing more physically demanding duties.

[26] Mr Sewpershad stated that the neuropsychological assessment showed some neurocognitive difficulties and neuropsychological sequelae which are compatible with a concussive head injury of minor category and are exacerbated by his limited education and post-accident factor, including chronic pain disorder, injury to his right thumb, hearing difficulties, depression and anxiety.

[27] Ms Motsepe recommended occupational therapy for the plaintiff’s lower back, left knee and coordination problems, and behaviour modification programme and the need for assistance devices.

[28] Adv Sekhukhune relied on the case of Sauerman v Road Accident Fund 2004 5 C+B B4–190 (AF), in respect of the head injury, where the Court in 2004 awarded R200 000.00 for general damages and the equivalent for 2011 in terms of the Quantum Yearbook by Robert Koch is R307 000.00.

[29] The plaintiff in the Sauerman v Road Accident Fun case supra, sustained a concussive head injury of moderate to severe intensity, leading to concussive syndrome which became irreversible. He lacks interpersonal skills and is violent and abusive and unable to cope with any jobs even menial ones, and was declared by the medical board to be permanently unfit for duty.

[30] The above case is clearly distinguishable and the injuries are more severe to the plaintiff’s injuries and the quantum awarded is of little assistance to the Court.

[31] In respect of the orthopaedic injuries, Adv Sekhukhune referred the Court to the case of De Wet AT v Road Accident Fund 2003 5 C+B E4–13 (AF), where the Court awarded R95 000.00 for general damages and the equivalent for 2011 is R148 000.00.

[32] In De Wet AT v Road Accident Fund supra, the plaintiff sustained fractures of the left tibia and fibula. A POP cast was applied and the plaintiff was mobilized on crutches, union has now occurred and bone grafting performed. The fracture healed but the plaintiff spent 18 months on crutches learning to walk and he was unfit for work for two years. The plaintiff was unable to run or move easily or stand for long periods or to sleep on the left said, thus working slower and for shorter periods.

[33] The above case is again a worse case scenario to that of the plaintiff.

[34] Adv Sekhukhune also relied on the case of Malope v Road Accident Fund 2003 5 C+B E4–7 (CA), where the plaintiff sustained a mid fracture of the right tibia with effusion of the right knee joint and where the arbitrator referred to the case of Road Accident Fund v Marunga 2003 (5) SCA 164 (SCA), where the socio-economic conditions of the plaintiff were taken into consideration and found that an indigent man’s indignity and suffering is different to that of a middle class man who would have assistance in getting from place to place without the need to rely upon public transport. In Malope v Road Accident Fund supra, the Court awarded the plaintiff R90 000.00. The equivalent for 2011 is R140 000.00.

[35] She submitted that the Court consider the plaintiff’s socio-economic conditions as the plaintiff is a shepherd and tends to his animals. There is no water and electricity. She submitted further that the Court award R200 000.00 for the orthopaedic injuries and R200 000.00 in respect of the hand injury.

[36] Adv Van der Westhuizen did not refer the Court to any new case authority and submitted that the cases referred to by the plaintiff were more extreme than the plaintiff’s injuries. She submitted that an amount of R150 000.00 would be appropriate for general damages.

[37] I have also considered the case of Manuel v Southern Insurance Association Ltd 1976 2 C+B 588 (E), where the plaintiff sustained a head injury, lacerations of the face and tongue, temporary impotence and fracture of the tibia and fibula. The plaintiff suffered complications arising from swelling and sepsis, also headaches and dizziness, left foot necessitating future arthrodesis of the left ankle and was left with a slight limp and unsteadiness and inability to run fact. The Court awarded damages in the amount of R9 000.00. The equivalent in 2011 is R253 000.00.

[38] In the case of Duduma v Road Accident Fund 1999 4 C+B E4–5 (BISHO), the plaintiff sustained a segmented fracture of the left tibia and fibula. Fracture uniting with bowed deformity and left leg is now 3cm shorter than the right leg. The plaintiff is unable to walk or stand for long periods. Fracture of the right clavicle which will preclude him from lifting heavy objects and debar him from employment in the heavy manual market. The Court awarded the amount of R35 000.00. The equivalent for 2011 is R70 000.00.

[39] Taking the above authorities into consideration, which merely provides guidance as well as the medical reports of the various experts, I am of the view that an award of R220 000.00 is just and fair for general damages.

D. ORDER

[43] The Court accordingly grants judgment in favour of the plaintiff against the defendant as follows:

a) The defendant is ordered to pay the plaintiff the amount of R223 862.80, which amount is made up as follows:

Past loss medical expenses R 10 824.00

Future loss of earnings 88 980.00

General damages 220 000.00

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R319 804.00

Less 30% 95 941.20

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Total R223 862.80

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b) The defendant is ordered to pay interest on the above amount at the rate of 15.5% per annum, calculated from 14 days after the date of this judgment to date of payment.

c) The defendant is ordered to furnish the plaintiff with an undertaking in terms of Section 17(4) of the Road Accident Fund Act 56 of 1996 for the costs of the future accommodation of the plaintiff in a hospital or nursing home for treatment or the rendering of a service or the supplying of goods to him after such costs have been incurred and on proof of payment hereof, which costs are limited to 70% of the proven costs.

d) The defendant is ordered to pay the qualifying fees, if any, of the following expert witnesses:

i) Dr A.M. Matime – orthopaedic surgeon;

ii) Ms Thandiwe Motsepe – occupational therapist;

iii) Mr Narropi Sewpershad – clinical psychologist;

iv) Dr L.F. Segwapa – specialist neurosurgeon;

v) Ms Esther Sempane – industrial psychologist;

vi) Dr’s Mkhabele and Indunah – diagnostic radiologists;

vii) Mr Alex Munro (Munro Consulting) – actuary.

e) The defendant is ordered to pay the plaintiff’s costs including the costs consequent upon the employment of counsel.

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N. GUTTA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 22 NOVEMBER 2011

DATE OF JUDGMENT : 08 DECEMBER 2011

COUNSEL FOR PLAINTIFF : ADV SEKHUKHUNE

COUNSEL FOR DEFENDANT : ADV L. VAN DER WESTHUIZEN

ATTORNEYS FOR PLAINTIFF : GURA TLALETSI INC.

(Instructed by MPHELA & ASSOCIATES)

ATTORNEYS FOR DEFENDANT : MOTLHABANI ATTORNEYS

(Instructed by T M CHAUKE ATTORNEYS)

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