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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:

                                               

DATE: 10 JANUARY 2022

  CASE NO: 88459/19 

 

In the matter between:

 

SIBUSISO WILSON THUSI                                                                                   Plaintiff

 

And

 

THE ROAD ACCIDENT FUND                                                                             Defendant

 

JUDGMENT

Delivered:  This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 10 JANUARY 2022.

 

MOTHA AJ

INTRODUCTION

1.             This is an application for default judgment brought by the Plaintiff, Sibusiso Wilson Thusi, who is an adult male born on 04 December 1994. On or about 01 December 2018 at or about 21h30 he was involved in a motor vehicle accident as a passenger, at the intersection of Medunsa road and Brits road in Pretoria. He was admitted at Akasia Hospital from 01 December 2018 to 05 December 2018.

 

2.             As a result of the aforesaid motor vehicle collision, the Plaintiff sustained the following injuries:

 

2.1 Left midshaft humerus fracture;

2.2  Laceration on the forehead with multiple abrasions diagnosed with a concussion;

2.3  Scarring and disfigurement;

2.4  Right knee sprain;

2.5  Scarring of the left arm and face.

 

 

 MERITS

 

3.             Merits have been conceded. The Defendant’s defence was struck out following its failure to hold a Pre-Trial Conference per the Court Order of 19 August 2021. Accordingly, this matter is proceeding unopposed.

 

GENERAL DAMAGES

 

4.             The issue of general damages is postponed sine die.

 

THE ISSUES

 

5.             The question of future medical expenses I intend to address it by way of an order for the provision of Section 17(4)(a) undertaking to the Plaintiff.

 

6.             This Court is therefore, called to adjudicate the question of quantum. The Plaintiff claims the following:

 

6.1                   Past medical expenses:                          R73 534.30

6.2                   Future medical expenses:                       S17(4)(a) undertaking.

6.3                   Past loss of earnings:                             R5552.00

6.4                   Future loss of earnings:                        R2 735 710.00

 

PAST MEDICAL EXPENSES

 

7.             The vouchers for past medical expenses were all uploaded on Caselines and amounted to R73 534.30.

 

8.           Following the accident the Plaintiff served and filed the following medico-legal reports:

 

 

8.1       Dr. Mennen (Orthopaedic Surgeon

8.2       Dr. Pandaram (Neurosurgeon)

8.3       Dr. Berkowitz (Plastic Surgeon)

8.4       Dr. Stephen Ferreira -Teixeira (Clinical Psychologist)

8.5       Michelle Ferreira -Teixeira (Occupational Therapist)

8.6       Ms. Sunetter Van Den Heever (Educational Psychologist)

8.7       Dr. Pretorius (Industrial Psychologist)

8.8       Johan Sauer (Actuary)

 

SUMMARY OF EXPERTS’ REPORTS

9.             Dr. Mennen confirmed that the Plaintiff sustained a mid-shaft humerus fracture which was treated with open reduction and internal fixation of the mid-third humerus with a plate and screw shaft fracture. Furthermore, with a plate on the left side of the shaft.

 

 

10.         Dr. Pandaram evaluated the Plaintiff on 26 March 2021 and concluded that the Plaintiff sustained a concussion. This could result in him suffering prolonged neuro-cognitive impairments. However, he stated, an MRI is required in order to rule out any structural abnormalities. Chances of epilepsy had not been increased and no future neurosurgical intervention was required.

 

11.         Dr. Berkowitz found the Plaintiff to have multiple small scars covering the whole of the forehead, and unsightly post-surgical scar measuring 140mm x 8mm longitudinally on half of the left arm. Two small scars were also noted on the elbow and these scars were amenable to improvement by means of surgical revision.

 

12.         Dr. Stephen Ferreira -Teixeira summarised that from the Plaintiff’s injuries no neuro-cognitive or neuro behavioural changes were expected as a result of mild traumatic/concussive brain injury. He concluded that the Plaintiff’s overall cognitive profile presented as mostly intact and his reported cognitive shortfalls may be attributable to emotive dysfunction and the presence of chronic pain. The plaintiff reported psychological distress in the form of  moderate features  of depression, very low anxiety and mild PTSD symptoms. Finally, he concluded that the Plaintiff has been rendered more psychologically vulnerable as a result of the accident.

 

 

 

13.         Michelle Ferreira -Teixeira noted that at the time of the accident the claimant was working as a Logistics Associate at BMW. He started working as such in March 2018. He returned to work after ten days of re-opening in January 2019. She concluded that the Plaintiff suffered occupational dysfunction and if his physical and psychosocial challenges are not well managed they will have a negative impact on his earning potential. From the assessment results, she concluded that the Plaintiff retains the physical capacity to engage in his work until retirement age. Furthermore, she concluded that he would also cope with his future aspirations of work within the supply chain management domain until retirement age. However, the reported discomfort and paraesthesia in his left dominant upper arm could negatively affect his productivity and work efficacy if he were to engage in constant medium to heavy tasks. The Plaintiff’s facial scarring could have a negative impact especially when interacting with clients/customers. It also has a negative impact on his self-esteem and self- confidence.

 

14.         Ms. Sunetter Van Den Heever recorded that pre-morbid accident the Plaintiff completed his National Diploma in Marketing in 2018 before he was involved in the accident. She postulates that he would have completed an NQF7 qualification in management. Post-morbid he would be left with an NQF 6 qualification.

 

15.         Dr. Pretorius examined the Plaintiff on 12 April 2021, and postulates that but for the accident the Plaintiff would have completed his B.Com degree in Marketing Management by the end of 2022. Furthermore, he would probably have secured a position in the marketing department of BMW head office and could have expected earnings comparable to a Paterson B4 and peak at around a Paterson D1/D2. After the accident the Plaintiff started his own business of assisting other start-up businesses with advisory services in Marketing, Management, Branding and using data and analytics to solve operational problems. The Plaintiff registered for his B.Com Marketing degree and only started in the second semester of 2019. In 2020 he discontinued his studies due to a number of factors, struggles with memory and Covid 19 being some of them.

 

16.         Johan Sauer postulates the following loss of earning based on Dr. W. Pretorius’ report.

 

                                                                                  Loss of Income

                                                                        Mr. S.W. Thusi

 

[REFER TO PDF AND RTF VESIONS FOR TABLE]

 PAST LOSS OF INCOME

 

17.         Pre and post morbid contingency of 5% translates into R5 552.00.

 

FUTURE LOSS OF INCOME

 

18.         It is trite that the Plaintiff must prove on a preponderance of probabilities his loss as well as the amount of damages that should be awarded. In assessing the compensation the Court has a large discretion, as was stated in Legal Insurance Company Ltd v Botes where the Court held:

 

“In assessing a compensation the trial Judge has a large discretion to award what under the circumstances he considers right. He may be guided but is certainly not tied down by inexorable actuarial calculations.” [1]

 

19.         In the seminal case of Southern Insurance Association v Bailey N.O  the Court stated the following:

 

 

“Any enquiry into damages for loss of earning capacity is of its nature speculative, because it involves a prediction as to the future without the benefit of crystal balls, soothsayers, augers or oracles. All that the court can do is to make an estimate, which is often a very rough estimate, of the present value of a loss

14.2 It has open to it, two possible approaches.

14.2.1 One is for the Judge to make a round estimate on an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown.

14.2.2 The other is to try and make an assessment, by way of mathematical calculations on the basis of assumptions resting on the 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.

14.2.3 It is manifest that either approach involves guesswork to a greater or lesser extent. But the court cannot for this reason adopt a non-possumus attitude and make no award." [2]

 

20.         In Road Accident Fund v Guedes  the Court adopted the actuarial computation as a useful tool when it held the following:

 

“It is trite that a person is entitled to be compensated to the extent that the person’s patrimony has been diminished in consequence of another’s negligence. Such damages include loss of future earning capacity (see for example President Insurance Co Ltd v Mathews2). The calculation of the quantum of a future amount, such as loss of earning capacity, is not, as I have already indicated, a matter of exact mathematical calculation. By its nature such an enquiry is speculative and a court can therefore only make an estimate of the present value of the loss which is often a very rough estimate (see for example Southern Insurance Association Ltd v Bailey NO.3 The court necessarily exercises a wide discretion when it assesses the quantum of damages due to loss of earning capacity and has a large discretion to award what it considers right. Courts have adopted the approach that in order to assist in such a calculation, an actuarial computation is a useful basis for establishing the quantum of damages. Even then, the trial court has a wide discretion to award what it believes is just.”[3]

 

 

21.         When looking at contingencies it is trite that one deals with the vicissitudes [4]of life such as life expectancy, periods of unemployment as well as the likelihood of illness. Hence these are matters that cannot be easily calculated but will impact upon the damages claimed. As stated in AA Mutual Insurance Association v Van Jaarsveld these are hazard that normally beset the lives and circumstances of ordinary people.[5]

 

22.         It is uncertain whether the Plaintiff will obtain the B.Com degree as was his intention pre-morbid. He was already in his second year in April 2021 and left with 8 more modules to graduate. Covid 19 played a role in stopping his studies.

 

23.         The Occupational Therapist from the assessment results concluded that there was a job match and that it was clear that he retains the physical capacity to engage in such work until the retirement age. I do not accept the 5% spread between pre-accident future earnings and post-accident future earnings. I am of the view that a 2.5% spread is indicated.

 

24.                  In the result I find that the Plaintiff has proven his claim to the extent as appears in the order below herein.

 

 

25.                  ORDER

 

1.                               The merits have been settled 100% in favor of the Plaintiff’s proven damages.

 

2.                               General Damages are postponed sine die.

 

 

3.                               The Defendant is ordered to pay the sum of R2 558 475.60 for loss of income in delictual damages and medical expenses following the injuries the Plaintiff sustained in a motor vehicle accident which occurred on 01 December 2018. The amount is made up as follows:

 

PAST HOSPITAL AND MEDICAL EXPENSES	R73 534.30
PAST LOSS OF EARNINGS	R5 552.00.
LOSS OF FUTURE EARNINGS	R2 479 389.30
TOTAL	R2 558 475.60

 

4.               The above-mentioned sum shall be paid by the Defendant to the Plaintiff on/or before 180 days from date of this order, by depositing same into the Plaintiff’s Attorneys of Record Trust Account, the details of which are as follows:

 

ACCOUNT HOLDER          : ROETS AND VAN RENSBURG

BANK                                 : ABSA BANK

BRANCH CODE              : 33 42 47

ACCOUNT NUMBER     : [….]

REFERENCE NUMBER : TL Zandberg/KCJ 309

 

5.               The aforementioned amount referred to in paragraph 3 above will not bear interest unless the Defendant fails to effect payment thereof within 14 (FOURTEEN) calendar days of the date of this Order, in which event the capital amount will bear interest at the prescribed rate of 7.25% per annum calculated from the date of this Order up to the date of payment.

 

 

UNDERTAKING

 

6.                    The Defendant shall provide the Plaintiff, within reasonable time, with an undertaking in terms of Section 17 (4) (a) of the Road Accident Fund Act, 56 of 1996,  wherein the Defendant undertakes to pay 100% of the costs relating to the future accommodation of the plaintiff in a hospital, or nursing home, or treatment of, or the rendering service, or supplying of goods to the Plaintiff that arises from the injuries sustained by the plaintiff in the motor vehicle accident of 01 December 2018 as and when such costs have been incurred and upon proof thereof (the “undertaking”).

 

 

COSTS:

 

7.                    The Defendant is ordered to pay the Plaintiff’s taxed or agreed party and party costs on High Court Scale, which costs will include, but will not be limited to the following, subject to the discretion of the taxing master:

 

7.1                    The costs of all expert reports, medico-legal reports, addendum medico-legal reports and combined joint reports, RAF4 Serious Injury Assessment Report(s) and radiology reports of all experts of whom notice had been given and/or whose reports have been furnished to the Defendant and/or its Attorneys and/or whose reports have come to the knowledge of the Defendant and/or its Attorneys as well as all reports in their possession and/or in the Plaintiff’s bundle of documents. This shall include, but not limited to, the following experts of whom notice has been given, namely:

 

7.2         Dr. Mennen (Orthopaedic Surgeon

7.3          Dr. Pandaram (Neurosurgeon)

7.4         Dr. Berkowitz (Plastic Surgeon)

7.5         Dr. Stephen Ferreira -Teixeira (Clinical Psychologist)

7.6         Michelle Ferreira -Teixeira (Occupational Therapist)

7.7         Ms. Sunetter Van Den Heever (Educational Psychologist)

7.8         Dr. Pretorius (Industrial Psychologist)

7.9         Dr. De Jong (General practioner)

7.10      Johan Sauer (Actuary)

 

8.             Costs of Plaintiff’s Counsel  inclusive of the drafting of the Heads of Argument  and Advice on Evidence, Plaintiff’s Counsel’s day fees for all previous and the reservation for trial/collapse fee, preparation for trial, consultation with client, attorney, employer and experts as well as travelling costs and attendance of inspection in loco/work visits.

 

9.             The costs for plaintiff’s legal practitioners, for attending to the pre-trial preparation, travelling, judicial case management meetings and attendance of the respective pre-trial conferences, court attendances and trial preparation;

 

10.         The reasonable costs in respect  of the preparation, drafting and copying of all the bundles of documents and time spent preparing Caselines;

 

11.         The reasonable costs for the preparation, attending, travelling expenses and time spent for conducting work sites visits and inspection in locos.

 

12.         The reasonable travelling costs (inclusive of toll gates and e-toll charges), subsistence, accommodation and transportation costs, if any and upon proof thereof, incurred by the Plaintiff in attending medico-legal examinations with a party’s expert in attending the office of the Plaintiff’s Attorneys for purposes of the virtual hearing/trial.

 

13.          The reasonable costs incurred in obtaining payment and/or execution of the capital amount mentioned in paragraph 3 above, if any.

 

14.         The Plaintiff is ordered to serve the notice of taxation of the Plaintiff’s party and party bill of cost on the Defendant.

 

15.          The Defendant is ordered to pay the Plaintiff’s taxed and/or agreed party and party costs within 180 (One hundred and eighty) days from the date upon which the accounts are taxed by the Taxing Master and/or agreed between the parties.

 

16.         Should the Defendant fail to make the payment of the party and party costs within 14 days after service of the taxed accounts on the Defendant, the Defendant will be liable for interest on the amount due to the Plaintiff at the applicable rate of interest per annum as from the date of taxation to the date of final payment.

 

17.         It is recorded that the Plaintiff and the Plaintiff’s Attorney of Record did not enter into any contingency fee agreement.

 

 

 

MOTHA AJ

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

 

 

 

 

Date of hearing: 29 NOVEMBER 2021

Date of judgment: 10 JANUARY 2022

 

 

 

Appearances:

 

For the Plaintiff: Adv. BP Geach (SC)

(Instructed by: Roets & Van Rensburg)

Email address:jason@rvrinc.co.za/087 150 5683

 

 

 

For the Defendant: No appearance

(Instructed by: No appearance)

 

 

 

 

 

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