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

						CASE NUMBER: 60234/2019

(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED: NO
 
                  ................................ 
           DATE      01 FEBRUARY 2022                                  SIGNATURE 

In the matter between:

FELICITY SUSAN BURTS 				Plaintiff 
and 
ROAD ACCIDENT FUND 				Defendant 
___________________________________________________________________________
				JUDGMENT
__________________________________________________________________________
KHWINANA AJ
INTRODUCTION 
[1]	The plaintiff instituted action proceedings in her personal capacity against the defendant for damages in terms of the Road Accident Fund Act 56 of 1996 pursuant to a motor vehicle Collison. 
[2]	The matter has been settled amicably, regarding the merits.
[3]	I am only called upon to make a determination on the liability in this matter. 
	PLAINTIFF’S INJURIES
[4]	The Plaintiff, aged 	48 (forty eight) years at the time of the accident, currently aged 52 	(fifty two) years, sustained injuries on the 21st September 2017. The Plaintiff suffered the following injuries in the accident: -. Moderate to severe diffuse concussive head (brain) injury, base of skull fracture; severe deformity of the left orbit left zygoma fracture; left inferior blow out fracture; loss of dentition; cervical spine 	injury; bilateral hearing loss; left periorbital open fractures with lacerations of the forehead eyebrow and nose double Vision, large z shaped 11 cm scar on her face which is irregular hyper pigmented and unsightly; soft tissue injury both knees; soft tissue injury lumbar spine/pelvic region; left foot injury; post-traumatic stress disorder; post-traumatic anxiety and major depressive disorder. 
	TREATMENT RECEIVED
[5]	The plaintiff was admitted and stabilized at Katleho Windburg District Hospital. She was transferred to Pelonomi Provincial Hospital, and then Metsimaholo Hospital in Sasolburg. She was given medication, X-rays and Suturing was also done. A CT Scan was also conducted. She was hospitalized for a total of 4 days. She returned for 	several follow-up sessions after discharge.
	CURRENT COMPLAINTS
[6]	The Plaintiff’s current complaints are the following  her knees are painful, especially when climbing stairs. She experiences headaches on the left side of her head. She experiences hearing problems of the left ear. Her left eye is blurry. She experiences pelvis pain. She experiences lower back pain. She lost two teeth during the accident. Her nose bleeds when sleeping. She experiences pain in her knees and back when walking long distances. She is forgetful and her neck is painful at times.
	SEQUELAE OF INJURIES
[7]	Constant pain and discomfort restrict range of motion had a 	Glasgow Coma Scale recorded as 12/15, 16 hours after the accident, had a 	dense phase of posttraumatic amnesia of ± 24 hours,  8% chance of 	developing epilepsy in future, has a 30% chance of future cervical spine 	surgery, has a 30% chance of future lumbar spine surgery  reduction in retirement age of five years can be expected, Neck pain and 	cervicogenic headaches, lumbar backache, pain in both ears with loss of hearing in the right ear and struggles with balance. She regularly feels off-balance and suffers from post-traumatic stress disorder. She struggles 	with loss of short-term memory and with lack of concentration, 	executive mental problems, concentration difficulties and difficulty in making decisions. 
	FUTURE MEDICAL TREATMENT
[8]	The medical practitioners opines that conservative treatment, surgical 	Treatment, consultations and examinations, physiotherapy and 	occupational therapy medication and cognitive behavioural therapy. 	It has further been opined that surgical scar revision left 	orbital 	reconstruction and cataract surgery in both eyes. 
	It is trite law that the defendant offers the undertaking certificate in 	terms of section 17(4) in 	relation to future medical expenses. The claim 	has been settled at 100% merits. It goes without saying that all injuries 	that were as a result of the supra mentioned motor collision will be dealt 	with in terms of the undertaking certificate.
	MEDICO-LEGAL REPORTS
 [9]	The plaintiff relies on the medico-legal reports in order to prove her claim. 	Counsel for the plaintiff submits that their respective reports were served 	on the defendant and filed accordingly. The defendant did not serve 	and file any expert’s reports to controvert the plaintiff’s claim. 
[10]	They are Dr. H Sesenke (Orthopaedic surgeon), Dr H B Enslin (General 	Practitioner), P J Peinaar (Plastic Surgeon), Dr J H Kruger 	(Neurosurgeon), Dr K D Rosman (Neurologist), Mariet Du Plooy 	(Audiologist), Dr L Van der Merwe (Ophthalmologist),  Dr J W Callaghan 	(Ear Nose throat Specialist), Dr C F Hoogendikj (Maxilo facial and oral 	surgeon), Dr PJ Swart (Gynaecologist), Bester Putter (Occupational 	Therapist); S Van der Merwe/ Liza Prinsloo (Clinical Psychologist), 	Janene White (industrial Psychologist) and Kobus 	Prinsloo (Actuary).

	GENERAL DAMAGES
[11]	 Counsel for the plaintiff submitted that given the multiple injuries and 	the sequlae which the Plaintiff 	sustained as mentioned in the 			aforementioned expert reports, the Plaintiff seeks an order of R1 500 		000.00 in respect of General Damages, taking into account the serious 	injuries sustained and the resultant sequalae thereof specifically as 	outlined. 
[12]	Counsel alluded to the legal principle that in considering the amount 	to be awarded for general damages it is acceptable to have regard 	to awards issued in comparative cases, although he conceded 	immediately that it is hardly impossible to find a case or cases that are 	on all fours with a particular set of facts. He further stated that the court 	in determining general damages a broad discretion must be exercised 	on what it considers fair and adequate compensation. The court will 	look at the nature, severity and permanency of the injuries sustained, 	together with pain and suffering, disfigurement, permanent disability 	and the effect on 	the person’s lifestyle. (my emphasis)
[13]	Counsel referred me to a plethora of caselaw being ELIZABETH 	MAKUBERE LITSEO vs ROAD ACCIDENT FUND and Road Accident Fund 	v Marunga 	 the 	Supreme Court of Appeal confirmed the dictum of 	Broom DJP in Wright v Multilateral Motor vehicle Accident Fund where 	it was set out: "I consider that when having regard to previous awards 	one must recognise that there is a tendency for awards now to be 	higher than 	they were in the past. I believe this to be a natural 	reflection of the changes in the society, the recognition of greater 	individual freedom and opportunity, rising standards of living and the 	recognition that our awards in the past have been significantly lower 	than those in most countries". 
[14]	Counsel for the plaintiff also referred me to the matter of Bouwer NO 	obo NWS v Road Accident Fund, who sustained multiple injuries and  	severe neurocognitive and neuropsychological sequelae. He also 	presents with significant symptoms of depression that can be 	attributed to a combination of factors including his ongoing pain 	and discomfort, sequelae arising from his injuries as a result of which he 	is forced to wear nappies, and the teasing from his peers in this regard. 	The court in the matter awarded an amount of R1 500 000.00 in 	2019 its current value is R1 610 000.00 in 2021. 

[15]	In the case of Fredericks v Union and Southwest Africa Insurance Co 	Ltd the court awarded an amount of R23 000.00 in 1964 which 	translates to an amount R1 648 000.00 in 2021. In the case of Zarrabi v 	The Road Accident Fund the court awarded an amount of R800 	000.00 in 2006 which translates to an amount of R1 828 000.00 in 	2021. It is my submission that the Plaintiff has suffered a combination of 	injuries listed in different cases listed above. As such we 	submit that an 	amount of R1 500 000.00 will be fair and reasonable. 
[16]	In SOUTHERN INSURANCE ASSOCIATION LIMITED V BAILEY N.O. 1984(1) at 99H the following was stated:
“The AD has never attempted to lay down rules as to the way in which the problem of an award of general damages should be approached. The accepted approach is the flexible one described in Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 AT 199, namely: “The amount to be awarded as a compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain depending upon the Judge’s view of what is fair in all the circumstances of the case”.  

[17]	The injuries sustained and their sequelae warrants that the plaintiff be 	awarded the claim of general damages. The difficulty as alluded to by 	counsel is in finding a case with similar injuries and or circumstances. I 	have taken into account the matters counsel for the plaintiff has alluded 	to. I have considered the cases that the plaintiff’s counsel has 	referred me 	to and I am satisfied that in considering the plaintiff’s claim 	and the said caselaw the award that is fair and reasonable in casu 	is 	the sum of R 1 500 000.00 (one comma five million rand).

 	LOSS OF INCOME AND/OR EARNING CAPACITY: 
[18]	Counsel for the plaintiff proceeded to allude to the personal 	circumstances of the plaintiff being that she completed grade 12 in 	1988 which is her highest qualification. She was employed in various 	capacities in her work life, with a particular interest within the 	Medical 	aid sector at the admin and investigative level. At the time of 	her 	involvement in the accident in question, she was unemployed at the 	time of accident as a result of her business having failed. 

	PRE-ACCIDENT: 
[19]	Counsel further referred to the work history of the Plaintiff and informed 	how she worked as a non-disclosure medical aid scheme 	investigator. The general job requirements of a non-disclosure 	medical 	aid claims investigator fall under medium type of work. A normal 	retirement age at 65 years would have been expected for the Plaintiff. 

	PRE-MORBID CAREER POSTULATIONS: 
[20]	The industrial psychologist opined that but for the accident considering 	Ms Burts’ educational level (Grade 12), her age at the time of the 	accident (47 years), her 	pre-accident work history and the collateral 	information obtained, Ms Burts probably would have returned to the 	open labour market in a capacity similar to her capacity before 	she bought the E-Travel franchise during approximately 	2017 to 2018. 	Writer is of the opinion that her earnings probably would have 	been in line with her actual pre-accident earnings in these capacities, 	i.e. R15 000 per month in 2014 (adjusted to the relevant year) with 	normal increases thereafter. As an alternative basis for quantification 	purposes, writer is of the opinion that Ms Burts probably could have 	earned in line with a Paterson B4 median earnings and complexity 	level (i.e. R307 374 per annum, annual guaranteed package, April 	2021 figure) with normal 	increases thereafter. 

	POST-MORBID CAREER POSTULATIONS: 
[21]	There Industrial Psychologist makes the following postulation for the 	Plaintiff’s post morbid/accident earnings. Having regard for Ms 	Burts’ reduced work capacity (both physically, cognitively and 	psychologically), the expert opinions referenced in the body of this 	report, Ms Burts’ educational level (i.e. Grade 12), post accident 	deficits and post-accident work history (she has remained 	unemployed to present date), writer is of the opinion that Ms Burts will 	probably find it extremely difficult to secure, but especially sustain 	suitable future employment on the open labour market. According to 	Ms Ward, the plaintiff is physically able to perform sedentary to medium 	type of work and therefore she will probably be able to comply with the 	physical requirements of a position such as 	Medical Investigator. 	However, considering her emotional and psychological deficits 	(including Post Traumatic Stress Disorder and Major Depressive Disorder 	with a lack of motivation and fatigue), avoidance of travel, decrease in 	vision, mild hearing loss, 	headaches, unsightly facial scarring, reduced 	cognitive efficiency and her current age (i.e. 52 years), she probably will 	not have the emotional 	resolve to search for, secure and especially 	sustain employment on the open labour market. 
[22]	Even if she was fortunate enough to secure employment, she will 	probably not be able to sustain employment and she will be left 	unemployed on the open labour market. As such, industrial 	psychologist has probably been rendered unemployable on 	the open 	labour market. 
	CASE LAW 
[23]	Counsel for the plaintiff relied on the famous case of Southern 	Association 	L.td v Bailey N0, Nicholson JA held: 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, augurs 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 the loss. It has open to it two possible approaches. 	One is for the Judge to make a round estimate of an amount which 	seems to him to be fair and reasonable. That is entirely a matter of 	guesswork, a blind plunge into the unknown. The other is to try to 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. It is manifest 	that either approach involves guesswork to a greater or lesser extent. 	(my emphasis)
[24]	In the supra matter it was evident that the plaintiff had a loss of 	earnings and the question that remained was whether to rely on 	mathematical calculation or the judge had to come up with an 	amount. In casu I am battling to see the relevance of this matter as 	counsel for the plaintiff in the paragraph supra has alluded to the fact 	that as at the date of the accident the plaintiff was not employed 	which is indicative of the fact that she did not earn an income 	therefore there is no evidence of the actual loss. The plaintiff has been 	said to be physically able to perform sedentary to medium type of work 	and therefore she will probably be able to comply with the 	physical 	requirements of a position such as a	Medical Investigator.
[25]	Counsel for the plaintiff proceeded to refer me to the, “But for principle 	that the Court cannot for this reason adopt a non-possums attitude 	and make no award. See Hersman v A Shapiro & Co per STRATFORD J: '“Monetary damage having been suffered, it is necessary for the 	Court to assess the amount 	and make the best use it can of the evidence before it. There are cases where the assessment 	by the is little more than an estimate; but even so, if it is certain that pecuniary has been 	suffered, the Court is bound to award damage” 
[26]	Again even with this principle I am unable to see how same can be 	said to apply in casu as there is no evidence that the plaintiff was 	earning an income for a period over two years as she has kept her 	cards close to her heart. What is clear is that she resigned and took 	an 	early retirement package. She invested it in a failed business. It is 	imperative to mention that the plaintiff has not taken 	this court into 	confidence with the package she received. The actuary in 	calculating the loss of earnings has not taken the said package into 	consideration. Now, on what am I to assess the loss let alone to 	estimate it. The plaintiff is not approaching this court with open arms. 

[27]	The actuary in his calculations says he took into account the income of 	the plaintiff prior her resignation which fact has not been backed up by 	any authority. The industrial psychologist says the 	plaintiff would have 	seeked employment sine qua non. It is evident that we do not 	know when the funds were lost, how were they lost and how 	much 	was lost. There is also no evidence that the plaintiff prior the accident 	was already seeking employment. 
[27]	It is imperative to mention that it is trite that the plaintiff is put in the 	position she would have been in had it not been for the accident. In 	casu if an award is made whereas there was no income it will mean 	that the opposite is being done.  On fairness of the award, Brand JA also 	cited, with approval the following 	passage from the judgment of Holmes J in 	the matter of Pitt v Economic Insurance Co. Ltd where he stated the 	following;
"The courts must take care to see that its award is fair to both sides-it must give just compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the defendant' s expense."
	
[28]	Counsel for the plaintiff alluded to the report by the actuary that 	mathematically done calculation which has been said to have been 	based on factual and medical evidenced. He says what remains is the 	question of the relevant contingencies to be applied, thus he referred 	to the matter of In Road Accident Fund v Reynolds, the full court 	stated the following: “Contingencies may consist of a wide variety of 	factors. They include matters such as the possibility of error in the 	estimation of a person's life expectancy, the likelihood of illness, 	accident or employment which in any event would have occurred 	and therefore affects a person's earning capacity (Minister of 	Defence 	and Another v Jackson supra at 34 FH; Boberg ''Deductions from Gross 	Damages in Actions for Wrongful Death". 
	CONTINGENCIES
[29]	Contingencies may be positive or negative. Not all contingencies 	are negative involving a reduction of the award. The Contingencies 	remain the prerogative of the court the industrial psychologist 	expert has already advised in that a higher than normal post-	morbid 	contingency must be applied. However, I still do not find relevance 	in 	casu as articulated supra.
	ANALYSIS
 [30]	I have considered the plethora of caselaw that counsel for the plaintiff 	has alluded to and the circumstances of the plaintiff in relation to her 	claim for loss of earnings. The first factor that I cannot close my eyes to 	is that as at the date of the accident the plaintiff had been out of 	employment for over a period two years. She had resigned in order to 	go into a business venture which failed. All questions to be asked of how 	much was received, did she receive an income have been left open by 	the plaintiff.
[31]	I have been called upon to determine the loss of earnings. The 	question is what informs loss of earnings? The plaintiff must have been 	working and due to the accident had to stop working and earning an 	income. It is trite law that the plaintiff must prove her case for loss of 	earnings prior the court making the award. Loss of earnings cannot be 	given simply because it has been requested, it is not just for the asking. 
[32]	In casu it is evident that as at the date of the accident she was not 	employed. She did not produce any proof of income for the period of 	two years as she had resigned and had taken a package. It was 	submitted that the plaintiff invested her funds into a failed business. 	The plaintiff did not tell me how much of the funds neither does she say 	how much did she receive and whether she drew a salary from the 	funds after she left her workplace. The actuarial report says that 10% of 	retirement package is taken into account however no amounts have 	been 	alluded to. It is important to remember that a claim for lost earnings 	will be for your lost ‘take-home’ pay only. This is the amount you would 	receive normally, after any tax and National Insurance etc, has been 	deducted. This is referred to as your ‘net earnings’. Your income with all of 	those normal deductions still included is your ‘gross earnings’. You can only 	claim lost net.
[33]	The impression given is that she put all her eggs in one basket which 	yield no fruits and she was prepared to go back into the open market. 	The industrial psychologist recorded that the plaintiff worked for her 	company from 2014 to 2016. The reason for leaving has been recorded 	as she sold the company. There is no evidence to suggest that she was 	already looking for employment regard being had to the business 	venture that had failed or sold. The actuary says that she would have 	gone 	back into the open market taking into account that she had 	worked in the said industry. We are not told that she was being head 	hunted or that a post of a person of her calibre was out which she would 	have 	qualified for. Even though same would have been true the fact 	would have remained is that as at the date of the accident she was not 	employed as per the report of industrial psychologist since 2016.
[36]	 It is so that there is no loss of earning that is evident under the 	circumstances. It 	is so that the actuary herein was speculating plunging 	into the unknown 	without any basis to qualify the guesswork. The 	plaintiff is 52 years of age and she left her employment at the age of 47 	years. She was already at the stage in her life could be termed the 	evening of her work life. She says she would have returned to her 	previous job however no evidence exist to confirm same. The industrial 	psychologist alluded to collateral information from the plaintiff’s previous 	employment which is not conclusive, what is worse is that the person at 	the former employment of the plaintiff could not assist with tangible 	information.  
[37]	This court has to consider all factors and consider to award the plaintiff 	an amount for loss of earnings, regard being had to the fact that she 	does not have any vocational training safe for the in-house training by 	the medical aid scheme companies, her age, that she had put her 	undisclosed funds in a failed business or sold the business in an 	undisclosed amount, life expectancy and possibility that she might have 	been employed. When a plaintiff approaches a court it is imperative 	that she does so in confidence and the court is not forced to 	speculative. The non-disclosure of business details denies me to 	conclude that indeed there is a loss by the plaintiff in so far as the 	earnings are concerned. It is therefore on those basis that I dismiss the 	plaintiff’s claim for loss of earnings.
[38]	It is so that the injuries sustained will require future medical attention and therefore it is trite that an undertaking certificate in terms of section 17(4) be awarded by the defendant in relation to the injuries sustained as a result of the accident herein. The plaintiff has submitted a draft order which includes a trust. Counsel has not addressed me as to why the funds needs to be secured. I have considered the injuries sustained by the plaintiff and I do not find any reason why the funds should be paid into a trust. I therefore order that same be paid to her.

[36]	Order:
 	The draft order, as amended, marked "X" is made an order of court.
							__________________________
	ENB KHWINANA
	ACTING JUDGE OF NORTH 			GAUTENG HIGH COURT, 				PRETORIA
APPEARANCES: 
COUNSEL FOR THE PLAINIFF:	 ADV A MASOMBUKA	
FOR DEFENDANT:	 		 NO APPEARANCE
DATE OF HEARING:	02 DECEMBER 2021
DATE OF JUDGMENT: 	01 FEBRUARY 2022

IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) 
								Case No: 60234/2019 
BEFORE KHWINANA AJ 
Via Videoconferencing Order granted electronically in accordance with the directives regarding special arrangements during the National State of Disaster
 In the matter between: 
FELICITY SUSAN BURTS 						Plaintiff 
and 
ROAD ACCIDENT FUND 						Defendant 
LINK NUMBER: 4417616 
___________________________________________________________________________
					DRAFT ORDER 
__________________________________________________________________________
After having heard argument from the Plaintiff’s counsel and having read the documents filed on record, the following order is made: 
1. 	APPLICATION TO STRIKE THE DEFENDANT’S DEFENCE AND THE ISSUE OF 	LIABILITY 
	1.1 The Defendant’s defence has been struck for non-compliance with 	the TIC court order granted by Flatela AJ on 15 November 2021. 
	1.2 The Defendant is liable to pay 100% (one hundred percent) of the 	Plaintiff’s proven or agreed damages as per the discharge form signed 	by the Defendant and Plaintiff dated 3 September 2018. 
2. 	General damages: R 1 500 000.00.  
3. 	The Plaintiff claim for loss of earnings is dismissed.
4.	In delictual damages for injuries sustained by the Plaintiff in a motor 	vehicle accident which occurred on 21 September 2017, which amount 	is payable by Defendant to Plaintiff within 180 days from date of court 	order by depositing same into Plaintiff’s attorneys of record's trust 	account, the details of which are as follows: 
	ACCOUNT HOLDER: MACROBERT INC BANK: 
	STANDARD BANK TYPE OF ACCOUNT: TRUST
	ACCOUNT NUMBER: [….] 
	BRANCH: PRETORIA 
	BRANCH CODE : 01-00-45 
	REFERENCE : V MBHELE/00031419 
	RAF LINK NUMBER : 4417616 
3. 	INTEREST: 
	3.1 The Defendant will not be liable for interest on the outstanding 	amount; 
	3.2 Should the Defendant fail to make payment of the capital amount 	within 180 days from date of court order, Defendant will be liable for 	interest on the amount due to Plaintiff at the prescribed rate per annum 	as from the date of this order to date of final payment. 
4. 	UNDERTAKING: The Defendant is ordered to deliver to Plaintiff, within 	reasonable time, an undertaking in terms of Section 17(4)(a) of the Road 	Accident Fund Act, Act 56 of 1996, wherein the Defendant undertakes 	to pay to Plaintiff the cost of future accommodation in a hospital or a 	nursing home or treatment of, or rendering of a service or supplying of 	goods to Plaintiff pursuant to the injuries she sustained in a motor vehicle 	accident which occurred on 21 September 2017 , after the costs have 	been incurred and on proof thereof. 
5. 	COSTS: The Defendant is ordered to pay the Plaintiff’s instructing and 	correspondent attorneys taxed or agreed party and party costs on the 	High Court Scale, 
	5.1 Should the Defendant fail to make payment of the party and party 	costs within 14 (FOURTEEN) days after service of the taxed accounts on 	the Defendant's attorneys of record, Defendant will be liable for interest 	on the amount due to Plaintiff at the prescribed rate per annum as from 	the date of taxation to date of final payment. 
7.  The Plaintiff and the Plaintiff's attorneys of record did not enter into any contingency fee agreement. 

SIGNED AT PRETORIA ON THIS THE ____DAY OF ________________ 2021 			
							________________________ 
							REGISTRAR 
COUNSEL FOR PLAINTIFF: A MASOMBUKA 
ATTORNEY FOR PLAINTIFF: MS V MBHELE
DATE: 01 FEBRUARY 2022