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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

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)     REPORTABLE: NO

(2)     OF INTEREST TO OTHER JUDGES: NO

(3)     REVISED: YES/NO

Case number: 15439/2017

 

 

In the matter between:

 

LUCKY DWESINI                                                                                                    PLAINTIFF

 

And

 

ROAD ACCIDENT FUND                                                                                        DEFENDANT

 

Delivered: this judgment was prepared and authored by the judge whose name is reflected and is handed down electronically and by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of his matter on Caselines. The date for handing down is deemed to be 22 November 2021.

 

JUDGMENT

 

PHAHLAMOHLAKA A.J.

 

INTRODUCTION

 

[1]       The Plaintiff who was 26 years of age at the time of the accident is now suing the Road Accident Fund for damages suffered as a result of the injuries sustained in that accident that occurred on 19 February 2015.The proceeded by default in the absence of the Defendant after the Defendant’s defence was struck out.

 

[2]       On 19 February 2015 the Plaintiff was a passenger in a motor vehicle with registration letters and numbers [….] there and then driven by the insured driver. The insured driver lost control of the vehicle and hit a ditch and as a result the plaintiff sustained injuries.

 

[3]       At the commencement of the trial counsel for the plaintiff informed me that merits were settled between the parties in that the defendant agreed to pay 100% of the plaintiff’s proven or agreed damages. The only issues for determination by this court are therefore, quantum of damages in respect of the past and future loss of earnings/earning capacity, general damages as well as future medical and hospital expenses.

 

[4]       Following the accident the plaintiff sustained the following injuries:

 

(a)       Head injury;

 

            (b)       Thoraco-Lumber Spine Injury;

 

            (c)       Right knee injury.

 

            The sequelae of the injuries are such that the plaintiff sustained a traumatic brain injury and has suffered a brief loss of consciousness and a non-contiguous post traumatic amnesia until she came to her senses at the hospital.

 

[5]       Upon neuropsychological assessment it was found that the plaintiff demonstrates the following neurocognitive deficits;

 

-           Overly very low (below average) score;

 

-           Visual memory low average, verbal memory below average;

 

-           Test of speed were all below average.

 

[6]       According to the experts the plaintiff sustained a traumatic brain injury and has suffered a brief loss of consciousness and a non-contiguous post traumatic amnesia until she came to her senses at the hospital. The history of loss of consciousness and duration of non-contiguous post-traumatic amnesia is consistent with a mild traumatic brain injury. Upon neuropsychological assessment, it was found that the plaintiff demonstrates neuro-cognitive deficits.

 

[7]       The plaintiff claims damages in respect of past and future loss of earning capacity, general damages as well as future hospital, medical and related epenses. I was informed by Counsel for the plaintiff at the beginning of the trial that merits have been settled 100% in favour of the plaintiff by way of an offer and acceptance. I am also at liberty to deal with the issue of general damages for the plaintiff was offered an amount for general damages by the defendant and same was not acceptable to the plaintiff. In essence I am of the view therefore that the plaintiff’s injuries were accepted by the defendant as serious injuries that qualifies the plaintiff for compensation.

 

                                     GENERAL DAMAGES

 

[8]        I will first deal with the plaintiff’s claim for general damages. In order for the plaintiff to qualify for compensation in respect of non-pecuniary damages the plaintiff’s injuries must have been assessed by a medical practitioner who must record the injuries as serious injuries and this must be recorded on a form referred to as a RAF 4 Form. The RAF 4 Form must be submitted to the Road Accident Fund and the Fund must either accept the injury as serious or reject. The defendant gave the plaintiff an offer for general damages and therefore the court is satisfied that the Fund accepted the plaintiff’s serious assessment form.

 

[9]    The plaintiff’s injuries and the sequelae thereof may be illustrated as follows:

 

  9.1    In respect of the Thoraco-Lumber Spine injury the Plaintiff sustained a soft tissue injury to his T8 –L2 spine and upon clinical examination, the following were found;

 

9.1.1     Painful on palpitation over T8 – L2;

 

9.1.2     Spasm over T8 – T12;

 

9.1.3     Pain on palpation over T12 – L2;

 

9.1.4     Spasm over T12 – L2.

 

[10] The Plaintiff also sustained a united lateral plateau fracture of the right knee with:

 

10.1.1  Chronic Pain;

 

10.1.2   Lacteral meniscus injury/possible tear;

 

 

10.1.3   Post traumatic osteoarthritis of the knee.

 

10.1.4    Right knee injury.

 

[11]     At the time of the accident the plaintiff was 26 years of age with the highest level of education being NQF Level 4. She was employed as a waitress at Cullinary Restaurant.

 

[12]     Counsel for the Plaintiff referred to several case law in an endeavour to justify an amount of R1 000 000.00 for general damages.  It is well known fact that these will never be two cases that are similar and therefore primarily decided cases will only serve as a guide. However in Road Accident Fund v Marunga[1] the court held that there is a tendency for awards of general damages to be higher than in the past.

 

[13]     A much closer comparable case is that of Abrahams v Road Accident Fund (1531/2010) [2012] ZACCPEH3 37 (29 May 2012). In this matter the plaintiff sustained a badly comminuted proximal right femur fracture; a fracture of the right patella; right distal fibulae and right medical malleolus; severe soft tissue injury to the left hand; and a mild concussive traumatic brain injury. General damages in the amount of R500 000.00 was awarded in 2012 with the current value being R 755 000.00.

 

[14]     I am therefore of the view that an amount of R800 000.00 is fair and reasonable amount for compensation in respect of General Damages.

 

                                          LOSS OF INCOME

 

 

[15]     I now turn to the aspect of loss of earnings or earning capacity. In order for the plaintiff to qualify for compensation for loss of earnings the plaintiff must prove that the injuries he/she sustained have compromised his ability to earn. It is not sufficient for the plaintiff only to prove that he sustained injuries. The plaintiff has a duty to satisfy the court that as a result of the injuries his patrimony has dimished.

           In Rudman v Road Accident Fund [2002] 4 ALL SA 422 (SCA) Jones AJA said the following: “[11] In my opinion the learned judge in the Court a quo has not misdirected himself in his understanding of these authorities or in his application of the law to the facts. His judgment correctly emphasises that where a person’s earning capacity has been compromised, “that incapacity constitutes loss, if such loss diminishes the estate”…and “he is entitled entitled to be compensated to the extent that his estate has diminished.”

 

[16] At the time of the accident the Plaintiff was working as a waitress at Cullinary Restaurant. Her highest level of education was an NQF Level 4 (Vocational) office admin. Post-accident the Plaintiff returned to work after a month. She was initially accommodated by being assigned smaller tables. After three months she returned to her normal pre accident duties. The Plaintiff worked until 2016 and she resigned because she was unable to cope with the physical demands of the job. Thereafter, the Plaintiff secured employment as a general worker in 2016 at 1^st Dairy earning R5000.00 and thereafter in 2017 at 21^st Century earning R2500.00 per month. The Plaintiff has applied for Higher Certificate in Event Management at Varsity College in 2019. She is currently studying Education, Intermediate Phase.

 

[17]     On the post morbid employment potential the Orthopaedic surgeon opined that the Plaintiff will not be able to do physical labour again. This makes her unfair competitor in the open labour market. She needs to be accommodating in a permanent light duty and back friendly working environment with immediate effect.

 

[18]     The Occupational Therapist opines that after securing permanent employment, based on having completed a four year agree, the Plaintiff would have started of earning on Notch 163, which would equate to an annual basic salary of R278 640.00 per annum.

 

[19]     According to the Educational Psychologist, the Plaintiff was going to continue with her Higher Certificate Studies and was going to pursue a Diploma (NQF 6) and/or a Degree (NQF 7), as she had the intellectual potential to achieve that, as the trend lately is that children often achieve more than their parents, academically and vocationally- the educational landscape has since changed to suggest the learners so the most are able to complete high school education. Dr Yvonne Matlala, Educational Psychologist, reported that in 2007 the plaintiff studied grade 12 and failed at the end of the year. In 2008 to 2011 she completed level 4 of the office administration and passed with Higher Certificate at Ekurhuleni West College (EWC). In 2012, she completed national certificate (vocational) in office administration at EWC. In 2013 she worked as a waitress at Cullinary Restuarant. The Educational Psychologist further says pre morbid the plaintiff has passed Level 4 in Office Administration, passed with higher Certificate which is equivalent to Grade 12. She was going to continue with a higher certificate study (NQF 5). The accident however, found her working as a waitress. Should she have the financial means and opportunity, she was going to pursue Diploma (NQF 6) and a Degree in Office Administration since she had the intellectual potential to achieve that. She needed career guidance. In 2015 she worked as a General worker at 1^st Dairy. In 2016, she worked as a General worker 21^st Century. In 2018 she completed internship in administration at 21^st Century. (She was able to complete internship). In 2019 and 2020 she is studying certificate in event management at Varsity College.

 

[20]     It is evident that the Plaintiff would be able to achieve post morbid potential what she would have achieved pre morbidly.

 

[21]     Ms Dwesini completed grade 12. She is currently studying for a Bachelor in Education at Varsity College. She was employed as a waitress at the Cullinary Restaurant at the time of the accident. She returned to work 2-3 weeks after the accident. She was reasonably accommodated upon her return. She worked until 2016 and she resigned because she was not able to cope with the physical demands of the job. She started with her tertiary education at Varsity College in 2019. She is currently a second year student. On completion of her studies she is expected to work as an Educator.

 

[22]     The ongoing symptomatology on the right knee will compromise her future work. The limitations will preclude her from occupations where prolonged standing and moving up and down as well as participation in physically demanding sports are a prerequisite. Ms Dwesini will require adaptations and reasonable accommodation in the work place should she secure work. Without these reasonable accommodations, her work output will be affected. She has been rendered a vulnerable and unequal competition in the open labour market and her limitation may lead to prolonged period of unemployment and the degenerative changes may lead to early retirement.

 

[23]     From the aforesaid reports it is abundantly clear that the Plaintiff‘s career path has been severely compromised as a result of the injuries sustained in the accident. To this end Mark May, the industrial psychologist, makes the following remarks:

 

“As result of the above, and noting the adverse impact that these factors would have on Ms Dwesini’s future depend post-accident earning potential, the writer opines that though she may enter the open labour market with an NQF 5 Level of Education, it is unlikely that she will be able to function at this level occupationally in order to earn on par with that of general populace with this or a similar type of qualification. As a result of this, the writer recommends for qualification purposes that Ms Dwesini will reach her career ceiling at the age of 50, earning on par with the median of Paterson Level B5 Annual Guaranteed Packages”.

 

[24]     Based on the reports by the industrial psychologist and other experts the Munro Actuaries made a calculation in respect of the plaintiff’s loss and the following comment was made in the report:

           

             “We have been instructed to apply for the following contingencies:

 

·               Uninjured-5% and 15% on Pat and Future earning respectively;

 

·               Injured- 60% (scenario 1), 70 %( scenario 2) and 80% (scenario 3) on future earnings.

 

[25]     There is no basis for such a low pre morbid and a high post morbid contingencies on future earnings. It must be noted that after the accident Ms Dwesini was able to finish internship and proceeded to register at an institution of higher learning.it is therefore necessary to apply higher contingencies on the uninjured future loss because the plaintiff did not suffer a total loss.

 

[26]     In the result I am of the view that taking all the factors into account the contingencies to be applied on the future injured should be 30% and for the injured it should be 50%. I agree with the contingencies applied on the past loss.

 

[27]    The result of the calculation will be as follows:

 

PAST LOSS

Value of income uninjured                                   R 407 000.00

Less 5% contingencies                                        R    20 385. 

 

Value of income injured                                       R 182 700. 00

 

Net past loss:                                                        R 204 615. 00

 

TOTAL PAST LOSS

 

FUTURE LOSS

Value of income uninjured                                 R 9 621 700.00

 

Less 30% contingency deductions                    R 2 886 510.00

                                                                           _______________

                                                                           R 6 735190. 00

 

Value of income injured                                     R 3 579 200. 00

 

Less 50% contingency deduction                      R 1 789 600.00

                                                                            _______________

                                                                           R 1 789 600. 00

 

Net future loss                                                    R 4 945 590.00

 

Net total   loss                                                     R 5 150 205. 00

 

 

                           FUTURE HOSPITAL, MEDICAL AND RELATED EXPENSES

 

28. The plaintiff’s injuries and their sequelae were discussed in detail at paragraph 9 above.

   28.1 Dr Okoli, the neurosurgeon, recommends the following treatment for the plaintiff:

 

     “Headaches: Analgesics is recommended for the control of her headaches at a cost of R 15000 as once off payment.

 

       Facial scar: Scar revision by a plastic surgeon is recommended to reduce the disfigurement and this will help with her mood disorder.

 

      Post Traumatic Anxiety: psychotherapy is recommended.

 

      Poor self-image: psychotherapy is recommended.

 

      Left knee pain: Defers to the Orthopaedic surgeon.

 

      Low back pain: Analgesics and psychotherapy is recommended for conservative treatment at a cost of R 30 000/annum.

 

There is a 5% risk that she may in the future undergo an operation to her lower back.

The operation will involve disc removal and a stabilization procedure at a cost of R 240 000 all inclusive (at today’s rate).”

 

28.2 Dr Oelofse, the Orthopaedic surgeon, opined as follows in relation to future treatment:

“The following treatment is recommended:

(i)             Conservative with NSAID( NONSTEROIDAL ANTI-INFLAMATORY DRUG)

 

(ii)            PHYSIOTHERAPY

 

The cost will be discussed.

 

(iii)          BIOKINETICS

The cost of which will be discussed later.

 

Should the above mentioned treatment not have the desired effect, the following should be considered;

 

(iv)         JOINT BLOCKS IN THE THEATRE

The cost of which amounts to approximately R 12000.

 

Please note all the above treatment is set out as across the patient’s total lifespan.”

 

[29] It is very clear from the recommended future treatment by the experts that the plaintiff has made a convincing case for an award for future hospital, medical and related expenses.

 

                           ORDER  

 

 

 

 

 

                                               

[30]   In the result I make the following order:

 

    30.1 The defendant is liable for 100% of the Plaintiff’s proven damages.

 

    30.2 The Defendant shall pay the Plaintiff the sum of R 5 950 205.00 (five million nine hundred and fifty thousand two hundred and five rand) in respect of the   Plaintiff’s claim for General damages as well as past and future loss of income.

 

     30.3 The Defendant is ordered in terms of section 17(4) (a) of the Road Accident Fund 56 of 1996 to reimburse the plaintiff for 100% of the costs of any future accommodation of the Plaintiff in a hospital or nursing home, or treatment or rendering of services to him or supplying goods to him arising out of injuries sustained by the Plaintiff in a motor vehicle accident that occurred on 11 December 2015 on which the cause of action is based, after such costs have been incurred and upon proof thereof.

 

A draft order attached hereto and marked “XKF” is made an order of court.

 

 

 

KGANKI PHAHLAMOHLAKA

ACTING JUDGE OF THE HIGH COURT,

GAUTENG DIVISION, PRETORIA

 

 

HEARD ON                           :           03 August 2021

FOR THE PLAINTIFF        :           Adv L Harskins

INSTRUCTED BY                :           Godi Attorneys

FOR THE DEFENDANT     :           No Appearance

DATE OF JUDGMENT       :           22 November 2021

 

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