Nkwane v Road Accident Fund (48441/19) [2024] ZAGPPHC 395 (5 April 2024) (2024)

REPUBLICOF SOUTH AFRICA

INTHE HIGH COURT OF SOUTH AFRICA,

GAUTENGDIVISION,

PRETORIA

1.Reportable: No

2.Of interest to other judges: No

3.Revised: No

CASENO: 48441/19

Inthe matter between:

MANDLANKWANEPLAINTIFF

and

ROADACCIDENT FUNDDEFENDANT

CEYLONAJ

[1]This is a claim fordelictual damages suffered by the Plaintiff as a result of injuriessustained is a motor vehicle accident whichoccurred on 04 September2018 at or near R61 Road, Lukholo Location, Bizana, Eastern CapeProvince.

[2]According to theParticulars of claim, the Plaintiff sustained the said injuries whenmotor vehicle with registration number G[…](hereinafterreferred to as the "insured vehicle") knocked down thePlaintiff who was a pedestrian at the time of theaccident.

[3]The Plaintiff allegedthat the said accident was caused as a result of the exclusivenegligence on the part of the driver of theinsured vehicle who wasnegligent in one or more of the respects mentioned in paragraph 5 ofthe said particulars of claim, andas a result of said negligence andaccident the Plaintiff sustained the following injuries: fractures ofthe 6^thrib, left tibia andcomminuted left tibia plateau fracture.The Plaintiff wasforced to undergo and will in future undergo hospital and/or medicaltreatment as a result of the injuries sustainedand the sequelaethereof.

[4]The Plaintiff, inlight of the above, claims a total amount of R4 200 000-00 (fourmillion two hundred thousand rand), it beingthe damages suffered bythe Plaintiff for the injuries sustained.The said total isconstituted as follows, as per his amended Particulars of claim:

4.1future medical expenses (estimated):R200 000-000

4.2past loss ofearnings:R500 000-000

4.3future loss ofearnings:R2 500 000-00

4.4generaldamages:R1.000 00-00

[5]Interms of the Practice Note, only signed by the Plaintiff's attorneys,it is indicated both the merits and quantum arein dispute.The Plaintiffcontended in his Heads of Argument that merits should be awardedfully (100%) in his favour and he should be entitledto 100% of hisproven or agreed damages.

[6]At the date of thetrial (03 November 2023) the Defendant and its legal representativeswas absent from Court and the Plaintiffproceeded on a default basisin terms of the Uniform Rules of Court.

[7]The Plaintiffproceeded to lead evidence by way of his experts reports, which wasadmitted after his Rule 38(2) application wasgranted, as well as byway of case authority.

[8]TheDefendant filed no expert reports and none of the parties called anywitnesses to testify at the proceedings.

B.THE PLAINTIFF:

[9]The Plaintiff isMandia Nkuwane, and adult male self-employed labourer/tiler, with ID­number 8[…] and resident at L[…]L[…], B[…],Eastern Cape Province. Hesues herein in his personal capacity.He was 29 years oldat the time of the accident.

[10]According to the report of the Orthopaedic surgeon (Dr SK Mafeelane),the Plaintiff enjoyed good health prior to theaccident and has neverhad any operation or admission to hospital.

[11]The Plaintiff resideswith his mother, niece and nephews.He is single and hastwo minor children, aged 13 (son) and 2 (daughter) respectively.He studied up tograde 10 at school. Hedid not complete any formal or work-related training.He was a self­employed general labourer and tiler prior to the accident but now isunemployed since the accident due to accident-relatedpain andlimitations he experienced.

[12]According to thereport of the Industrial Psychologist, the Plaintiff reported that heearned about R4500-00 per month, dependingon the type of work andamount of work he received.

[13]According to the saidOrthopaedic surgeon, the Plaintiff sustained injuries to the 6^thribfracture, right elbow, left tibia plateau facture and head injury.The Plaintiffcomplained about the following:chest and left kneepain. Hereceived treatment as follows:X-rays, analgesic andantibiotics, neuro-observation, ATT injection, left above kneeplaster of Paris, physiotherapy and crutches.He experiencesswelling of the left knee, left proximal tibia posterior angulationand tenderness of the left knee, scars to rightarm and elbow, scarto the head and severe pain and suffering due to the injuries.

[14]According to theexperts, the injuries the Plaintiff sustained which resulted inserious long-term impairment. Heis only suitable for sedentary work and will struggle to re-entre thework arena.He is thus an unequalcompetitor in the open labour market.

[15]As indicated above,the Plaintiff suffered various injuries in the accident.Said injuries andtheir sequalae will be discussed by way of the expert reports filedby the Plaintiff.

(a)the Orthopaedicsurgeon (Dr SK Mafeelane):

Themain findings of this experts' report have been outlined above andwill not be repeated here.

(b)the Radiologist(Dr Mkhabele & lndunah):

(i)These expertsexamined the left knee and lower left leg of the Plaintiff andconfirmed the following: olddepressed tibial plateau and proximal fractures with posteriordisplacement of1cm; old fracture of the proximal fibular shaft with acceptablealignment and articulation; old fracture of the lateral femoralcondyle; narrowing of the lateral joint space of the knee;patella-femoral joint is normal and there are no radio-opaque intra­articularbodies.

(ii)They also examinedthe right elbow by way of X-rays and reported the following:there are nofractures, dislocation or subluxation noted; elbow joint spaces arewithin normal limits; no displacement of both theanterior andposterior the fat pads; no loose radio­ opaque intra-articularbodies and no abnormal calcifications in the surroundingsoft tissuesseen. Theycommented that there is no bony injury or pathology.

(c)the Neurosurgeon(Dr AB Mazwi):

(i)Following theexamination of the Plaintiff, this expert concluded that he sufferedthe following injuries from the accident:mild head injury;post injury recurrent headaches; significant long term mentaldisturbance; multiple scars; chest rib fracture;right elbow injuryand left tibiafibula fracture; reduced employability; the Plaintiff qualifies underthe following (narrative tests):permanent seriousdisfigurement; significant long term mental disturbance and theexpert recommend that the Plaintiff qualifiesfor compensation forgeneral damages on the narrative test.

(ii)The expert alsoconcluded that: thehead injury is a direct result of the accident; the memorydisturbances and poor concentration are due to the head injury andthat the Plaintiff has significant loss of amenities of life and hasreached maximal medical improvement and the Plaintiff hassignificantmental disturbance, and itis fair tocompensate the Plaintiff. Theexpert also proposed compensation for general damages, futuretreatment and loss of earning capacity.

(d)the ClinicalPsycologist (V Guqa & L Maye, Leenut Assem*nt Centre):

(i)After this expertsexamined the Plaintiff and taken into account the input of otherexperts they reported the following:

-pre-accident(socially): thePlaintiff was a sociable and outgoing person with stable and positivefamily relationships, good interpersonal relations withotherindividuals, and he engaged in moderate entertainment and leisureactivities such as going out to watch soccer with his friends,hunting and active inhelpingcommunity members.

-physically:no physicaldifficulties or limitations were reported prior to the accident, hekept physically fit and jogging with friends andassisted with homegardening activities. He was never involved in any previous accidentnor has any injuries before.

-cognitively:the Plaintiff leftschool in the middle of grade 10.No cognitivedifficulties were reported, and he did well scholastically with areported overall educational aptitude of being ofaverage function.

-psychologically:no family relatedpsychiatric history was reported and no psychological conditions norany treatment sought prior to the accident.

-academically/occupationally:Plaintiff left schoolto seek employment and begin his working life in 2020 as a tiler andceiling installer assistant and from2011 to the time of the accidenthe did these same jobs in a self-employed capacity.

-post-accident(socially): thePlaintiff were less socially engaged and preferred not to be aroundpeople after the accident.

-physically:he has headaches, canno longer do running and jogging and struggled with garden activitiesand required assistance with same.He experienced kneepain, especially in inclement weather conditions, suffers back pains,nose bleeding, poor balance, muscle poolspasms and swollen knee.He also hasdifficulties with kneeling, standing and sitting for prolongedperiods as a result of the knee pain, and physical headscaring.

-cognitively:he suffered bothshort- and long-term memory disturbances and concertation problems,slowed mental processing and feeling cloudedmentally.

-psychological:he experiencedmoderate depressive symptoms, anxiety, anger and irritability andPTSD symptoms, hopelessness when considering hisbleak futureprospects. Heis socially withdrawn and get depressed when realising his changedlifestyle and the impact the accident had on his emotionalfunctionand interpersonal relationships.

-academically/occupationally:he is currentlyunemployed and has reduced occupational function due to the knee painafter the accident. Hehas difficulties with standing, sitting and kneeling for prolongedperiods which caused discomfort and pain difficult to endure.

(ii)According to thisexpert, the Plaintiff's head injury sustained in the accident has hada contributory role to his current neuropsychologicalandneurocognitive impairments andhas led topersistent headaches, alterations inMSCHIF withdisturbances with memory and concentration abilities, personality andmood changes which impacted negatively on hisinterpersonal relationsand psychological functioning.

(iii)The expert alsoreported the following:disturbances in theverbal memory, mild impairments with working memory capacity, complexattention and mental tracking abilityand language formation andfluency, psychological distress and moderate anxio­ depressivedisorder, emotional difficultiesof feeling helplessness, sociallydisengaged and has not been able to maintain his friendships he hadprior to the ancient, orhis healthy lifestyle such as jogging andrunning with friends or leisure activities such as hunting.He still experiencesintrinsic post traumatic stress related symptoms includingirritability, and hypervigilance and becomes distressedat beingexposed to triggers associated with the accident, which he tris toavoid all the time. Hesuffers from chronic pain and have a phobic reaction in trafficsituations and when travelling in a vehicle.He has distressingemotional difficulties that endures suicidal ideations but remainedasuicidal with no intention or plan theretoat the time of theassessment. Theexpert recommends psychological interventions to help him to copewith the current reactive psychological problems.

(iv)The expert furtherreported that due to the injuries sustained by the Plaintiff, hecould not continue with his work prospects,and he has a reduced workfunction due to physical limitations due to the accident.He has difficultieswith coping with tasks that require physical exertion and is onlysuited for sedentary work. Hewill not cope with work that increased the pain in his left knee andlower leg. Thiswill deteriorate his mobility and general agility.The expert considershim to be an unequal competitor in the open labour market as his workoptions have been compromised significantly.

(v)According to theseexperts, the quality and enjoyment of life of the Plaintiff has beennegatively affected by the accident andthe injuries sustained.He now has limitedcareer options and diminished future financial security.He still suffersmemory and concentration problems, became socially disengaged and hasneurocognitive deficits, reduced neuropsychologicaland physicalfunctioning.

(vi)In the view of theseexperts, the Plaintiff will benefit from individual psychotherapy toassist him with the difficulties in hisphysical and psychologicaladjustment after the accident.

(e)the Plasticsurgeon (Dr SS Selahle):

Thisexpert reported scars to the scalp, right upper limb and left lowerlimb of the Plaintiff, also chest pains and painful leftlower limb.He found that the Plaintiff suffered serious injury in that hesuffered permanent serious disfigurement due to theaccident and theinjuries sustained.

(f)the Occupationaltherapist (TCaga):

(i)This expert confirmedthe injuries sustained in the accident as indicated, for instance, bythe Orthopaedic surgeonand the input of the other experts such as the Radiologist.

(ii)After theoccupational therapy assessment, this expert reported that thePlaintiff was physically only suited for sedentary andlightoccupations. However,his ability to find the latter type of work is severely limited dueto his level of education and past work experience.Due to the injuries,he will not be able to do the work (tiler/general labourer) he didprior to the accident. Theexpert recommended occupational therapy interventions of six (6)hours to address provision of ergonomic adaptations and adaptionofactivities of daily living and leisure activities, education on painmanagement, joint protection and spinal hygiene principlesand theteaching of alternative methods of task execution.The costs of suchintervention approximately R650-00 to R850-00 per hour.

(iii)Other interventionsrecommended are physiotherapy for pain management and biokineticintervention for muscle strengthening.They also recommendthe following assistive devices:pain-relieving heatpacks (R150-00), orthopaedic mattress (R10 000- 00), small bench(laundry) (RS00-00), bucket on wheels (R400-00),etc.He would also requiregarden and transport assistance.

(g)the Industrialpsychologist (T Ntsieni):

(i)Thisexpertalsoconfirmed theaccidentandinjuries sustainedbythePlaintiff andtaking into accountthe input of the Orthopaedic surgeon, Plastic surgeon, Neurosurgeonand the Clinical psychologist, and afterassessment of the Plaintiff,reported that the Plaintiff did not work and therefore not generatedany income during his hospitalisationperiod and did not resume worksince the accident. Heis unemployed with no income.Thus, past loss ofearnings is noted from time of the accident to date of accident.

(ii)The expert is of theopinion that the Plaintiff suffered significant injuries whichdiminishes his prospects of resuming pre-accidentgainful employmentand thus likely to suffer future loss of earnings.

(iii)The expert reportedthat the injuries and their sequelae are debilitating factors thatlimit and will limit the Plaintiff's employability,future careerchoices and income potential. The nature of the injuries sustainedhave compromised his health and affected his psychological,neurological, psychological, cognitive and occupational abilities.The expert istherefore of the view that the Plaintiff is an unequal competitor inthe open labour market and will not be able tocomplete functionseffectively and efficiently as compared to his counterparts.

(h)the Actuaries(Munro Forensic Actuaries

Theactuaries calculated the loss of earnings/earning capacity of thePlaintiff and the basis of these calculations. These are reportedintheir report provided to this Court in these proceedings and toassist in determining the Plaintiff's loss of earnings claimedfor.

[16]The merits appear tobe in dispute between the parties.In the Defendant'sspecial Plea, the issue of the seriousness of the Plaintiff'sinjuries seems to be disputed by the Defendantwhere the Defendantpleaded that in terms of the provisions of section 17(1) of the RAFAct 56 of 1996, an amended, it is not obligedto compensate a thirdparty for non-pecuniary loss unless there is "serious injury"sustained and compliance with Regulation3 of the Regulations to thesaid Act is shown.

[17]In his Replication tothe said Special Plea, the Plaintiff indicated that he submittedhimself for the serious injury assessmentby his specialist andattached the RAF 4 Form, completed by Dr SK Mafeelane, who indicatedthat in his opinion, the injuries sustainedis serious.The Plaintiff istherefore of the view that there was compliance with the Regulationsto the Act and prayed that the Defendant'sSpecial Plea be dismissedwith costs.

[18]The Defendant pleadedfurther that it denies any negligence as alleged or at all on thepart of the driver of the insured vehicleand, alternatively, jointand/or contributory negligence of the Plaintiff.

[19]In the view of thisCourt, the Defendant did not rebut the Plaintiff's claim that itsinsured driver was negligent in the respectsreferred to in theParticulars of claim, particularly in light thereof that thePlaintiff was a pedestrian, just finishing to crossthe street whenhe got knocked down by the insured vehicle who drove at a very highspeed. Further, the Defendant, in the opinionof this Court, did notestablish contributory negligence as envisaged in the decision ofSolomon andAnother v Musset and Bright Ltd 1926 AD 427 at 435.

[20]The Defendant did notlead evidence in this regard or rebut any evidence provided by thePlaintiff on this issue.Accordingly, thisCourt views the evidence of the Plaintiff as uncontested on thisissue. Therefore,this Court is of the opinion that the Plaintiff is entitled to hisfull (100%) compensation of the proven or agreed damagesand theDefendant is liable to compensate 100% of these damages.

(i)general damages:

[21]It appears frompleadings that this head of damages is definitely in dispute.Further, it is not clear if the Defendant decidedif it is going toaccept or reject the Plaintiff's seriousinjuryassessment as provided in the completed RAF Form 4.In view of thelatter, this Court is of the view that it is not competent toadjudicate on this head of damages and therefore intendto postponeit sinedie.

(ii)future medical,hospital and related expenses:

[22]It is apparent fromthe Plaintiff's expert reports that the injuries he sustained willattract future medical, hospital and relatedexpenses.Accordingly, thisissue will be dealt with according to section 17(4)(a) of the RAF Actand this Court intend to make an appropriateaward to this effect.

(iii)past and futureloss of earnings/earning capacity:

[23]The details of thePlaintiff's past and future loss of earnings/earning capacity is setout in the actuary report provided to Court.The report dealt withand have taken into account the reports and recommendations ofcertain medical experts consulted by the Plaintiff.

[24]For a Plaintiff tosucceed in a claim for loss of earrings, he must prove on a balanceof probabilities that he suffered a significantimpairment givingrise to a reduction in earning capacity.There must be proofthat the reduction in earning capacity gives rise to pecuniary loss[Rudman vRAF 2003(2)SA 234 (SCA)]. InDe Jongh vDu Pisani2004(5) QOD J2-103 (SCA) it was held that contingency factors cannotbe determined with mathematical precision and that contingencydeductions are discretionary.This principle wasalso acknowledge in Zondiv RAF [(2565/2015)[2021]ZAGPPHC 707 (26 October 2021) at para 14].

[25]In Hermanv Shapiro & Co [1926PD 367 AT 379] it was held that:

"Monetarydamage having been suffered, it is necessary for the Court to assessthe amount and make the best use of the evidencebefore it. There arecases where the assessment by the Court is very little more than anestimate, but even so, if it is certainthat pecuniary damage hasbeen suffered, the Court is bound to award damage."

[26]It is trite that thetrial court has a wide discretion to award what it in the particularcirc*mstances order to be fair and adequatecompensation to theinjured party for bodily injuries and their sequelae [AAMutual Association Ltd v Magula1978(1) SA 805 (A) at809]. Thereare no hard and fast rules to be applied in deciding what a fair andadequate compensation to an injured party should be.Arbitraryconsiderations must inevitably pl y a part.An enquiry intofuture loss of income is by nature speculative because it involvesprediction of the future [Moeketsiv RAF (5651/2016)[2021]ZAFSHC 214 (30 July 2021) at para 21; SouthernInsurance Association v Baily NO1984(1) SA 98 (AD)].

[27]In connection withactuarial calculations, in BailyNO, supra,it wasstated that:

"...while theresultof an actuarial computation may be no more than "informedguess"it hastheadvantage of an attempt to ascertain the value of what waslost on alogical basis."[at 114E; Moeketsi,supra, atpara 22).

[28]In this matter, the actuaries calculated the past loss of earnings atR335 500-00 and future loss at R2 105 200-00.No contingencydeductions were included to the calculations.The total loss ofearnings were calculated at R2 440 700-00.

[29]According to the Plaintiff's HOA, the contingencies of 5% on pastloss and 20% on uninjured loss was applied, thereforeR16 775-00 andR421 040-00 respectively. Therefore, past loss would be R318 725-00and future loss R1 684 160-00 after such contingencydeductions. Thetotal loss of earnings would therefore be R2 002 885-00.

[30]Having considered the evidence and circ*mstances in this mattercumulatively, this Court is of the opinion that the injuriessustained by the Plaintiff is serious and there is no doubt that thePlaintiff will derive benefit from the treatment and interventionsrecommended by the experts in their reports.These will afford thePlaintiff some assistance and relief.Most of the damagescaused by the injuries will have a serious and lasting impact on thePlaintiff's health, general well-beingand amenities of life.

[31]Taking into account the relevant facts, legal principles, decrease inthe value of money, the nature of the injuriessustained by thePlaintiff and the resultant sequelae thereof, the Court is inclinedto award, asjust, fair and adequate compensation, the following in favour of thePlaintiff:

(a)past medical andhospital expenses notapplicable

(b)past loss ofearningsR318 725-00

(c)future loss ofearningsR1 684 160-00

(d)future medical andhospital expenses undertaking in termsof section

14(4)(a)

(e)generaldamagespostponed sinedie

[32]In the view of this Court, there is no factors or good grounds tosuggest that costs should not follow he result.

[33]In the result, the following order is made:

(1)The Defendant is 100%liable for the Plaintiff's proven or agreed damages;

(2)The Defendant shallpay an amount of R2 002 885-00 to the Plaintiff;

(3)All amounts in termsof this order shall be paid to the Plaintiff's attorneys, SotshintshiAttorneys, within 180 days of date ofthis order, into their trustaccount with details as follows:

(a)accountholder:Sotshintshi Attorneys

(b)bankandbranch:First National Bank, Hatfield(Pretoria) branch

(c)accountnumber:6[…]

(d)branchcode:2[…]

(e)accounttype:Trust account

(4)The Defendant isordered to furnish the Plaintiff with an undertaking certificate interms of section 17(4)(a) of Act 56 of 1996,for the payment of thecosts of future accommodation of the Plaintiff in a hospital ornursing home for treatment or for renderinga service or suppling ofgoods to Plaintiff arising from the injuries sustained in the motorvehicle accident which occurred on04 September 2018;

(5)In the event ofdefault of payment of the above amounts, interest shall accrue onsuch outstanding amount at the prescribed ateper annum, calculatedfrom the date of default until date of payment, both days included;

(6)The Defendant isordered to pay the Plaintiff's taxed or agreed party and party costson the High Court scale, including the qualifyingcosts of allexperts whose notices have been served on the Defendant and costs ofcounsel;

(7)In the event thatcosts are not agreed between the parties, the Plaintiff will beentitled to serve a notice of taxation on theDefendant.The taxed costs willbe payable within fourteen (14) days of the date of taxation andshall likewise be paid into the said trustaccount of the Plaintiff'sattorneys set out above;

(8)The issue of generaldamages is postponed sinedie.

ACTINGJUDGE OF THE HIGH

COURT,GAUTENG DIVISION,

PRETORIA

Hearingdate:03 November2023

Judgmentdate:05 April 2024

Forthe Applicant:

Instructedby:Sotshintshi Attorneys Arcadia, Pretoria

Forthe Defendant:No appearance

Instructedby:Not applicable