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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

 

CASE NO: HCAA27/2022

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED: YES/NO

DATE: 12/06/2023

 

In the matter between:

PHENELIA KHUTSO MAKAEPEA	APPELLANT
And
ROAD ACCIDENT FUND	RESPONDENT

 

JUDGEMENT

 

KGANYAGO J

 

[1]            When this claim was lodged and the action was instituted against the respondent, the appellant was represented by her biological mother Marara Mothateho Makaepea as the appellant was still a minor child. The appellant has since attained the age of majority, had substituted her mother and is now claiming in her personal capacity. The appellant claim emanates from the injuries which she had sustained in a motor vehicle accident which occurred on 22^nd July 2011 when she was a passenger. The third-party claim was lodged with the respondent. The respondent failed to settle the matter within the stipulated time period and that resulted in the appellant instituting an action against the respondent claiming damages she allegedly suffered as a result of the accident.

 

[2]            The respondent had defended the appellant's action. The respondent had conceded 100% liability in favour of the appellant. Before the action could be finalized, the respondent terminated the mandate of their attorneys of record. The respondent had offered to settle the appellant's claim by tendering an undertaking in terms of section 17(4) of the Road Accident Fund Act 56 of 1996 (Act), general damages and loss of earnings. The offer that was acceptable to the appellant was the undertaking only, whilst general damages and loss of earnings were not acceptable. The appellant proceeded to set matter down for hearing.

 

[3]            The matter came before Semenya DJP and on that date the respondent was in default. A default judgment was argued on the amount to be awarded for general damages and loss of earnings, and further that the order should incorporate the undertaking in terms of section 17(4)(a) of the Act. Counsel for the appellant had taken the court a quo through various experts reports that they have filed. The RAF 1 form completed by Dr Heyns has stated that the appellant did not qualify for general damages. However, the neurosurgeon who later assessed the appellant has stated that the appellant qualified for general damages under the narrative test of sever long term mental or sever long term behavioural disturbance or disorder. The court a quo rejected the opinion of the neurosurgeon, but accepted that of the orthopaedic surgeon and dismissed the appellant's claim with regard to general damages.

 

[4]            On loss of earnings, the court a quo concluded that on the available evidence, the appellant's loss consists of past loss only as per the calculations of the actuary. Further that the evidence proves that the appellant can still enter the labour market at the pre-accident level in that the appellant was now in possession of NQF 4 qualification. Based on that the court a quo rejected the opinions of the experts and did not award the appellant future loss of earnings, but only past loss of earnings after applying 20% contingency deduction. The court a quo also did not make an order in relation to the undertaking in terms of section 17(4)(a) of the Act.

 

[5]            The appellant with the leave of the court a quo is partially appealing the judgment and order of the of the court a quo. The appellant is appealing against the dismissal of her claim on general damages, future loss of earnings and failure by the court a quo to incorporate the undertaking in terms of section 17 in its order. The appellant is not appealing the order for the award of past loss of earnings.

 

[6]            This court is called upon to determine whether the court a quo erred in dismissing the appellant's claim on general damages, future loss of earnings and also on failing to incorporate the undertaking in its order. Regarding the issue of the undertaking, the appellant had accepted the respondent's offer and did not make it an issue when the matter was heard in the court a quo. The court a quo in its judgment did not entertain the issue of the undertaking. In my view, the failure by the court a quo to incorporate the issue of the undertaking in its order might have been an honest mistake which could have been rectified by a variation order.

 

[7]            Turning to general damages, it is settled law that the trial court has a wide discretion to award what it in the particular circumstances, considers to be fair and adequate compensation to the injured party for his/her bodily injuries and their sequelae. (See AA Mutual Insurance Association v Maqula[1]).

 

[8]            The court a quo in dismissing the appellant's claim for general damages relied on the RAF 4 form completed by Dr Heyns the orthopaedic surgeon who found that the appellant did not qualify for general damages, and rejected the opinion of doctor Chula who found that the appellant qualifies for general damages through the narrative test. What the court a quo overlooked was that the determination whether the appellant qualifies for general damages is an administrative function which must be exercised by the respondent, and not a judicial function by the courts.

 

[9]            In RAF v Faria[2] Willis JA said:

 

"The amendment Act read together with the regulations has introduced two 'paradigm shifts' that are relevant to the determination of this appeal: (i) general damages may only be awarded for injuries that have been assessed as 'serious' in terms thereof; and (ii) the assessment of injuries as 'serious' has been made an administrative rather than a judicial decision. In the past a joint minute prepared by experts chosen from contending sides would ordinarily have been conclusive in deciding an issue between a third party and the RAF, including the nature of the third party's injuries. This is no longer the case. The assessment of damages as 'serious' is determined administratively in terms of the prescribed manner and not by the courts. Past legal practices, like old habits, sometimes die hard. Understandably medical practitioners, lawyers and judges experienced in the field may have found it difficult to adjust. As the colloquial goes, 'we are all on a learning curve"'.

 

[10]    It is clear that for the courts to have jurisdiction to entertain a claim for general damages in relation to third party claims against the respondent, the respondent should have made a decision whether it accepts or reject the injuries as serious. In the case at hand, the respondent had made an offer of general damages which was not acceptable to the appellant. By making an offer, the respondent has accepted that the appellant's injuries were serious, and it was no longer open to the court a quo to re-open the matter and determine whether the appellant qualified for general damages or not. Since the appellant had rejected the respondent's offer, what the court a quo was required was to determine what was a fair award to be awarded to the appellant as compensation for general damages. In my view, the court a quo erred as it did not have the jurisdiction to determine whether the appellant qualifies for general damages or not. Since the respondent had already taken a decision on general damages, this court is at large to determine what is the fair general damages to be awarded to the appellant.

 

[11]         According to the RAF 1 form completed by doctor Heyns, the appellant was involved in a motor vehicle accident and had head injuries "swollen forehead" and right humerus fracture. Doctor Chula the neurosurgeon in his report has recorded that the appellant had sustained a mild head injury, right humerus fracture and dental injuries with the resultant memory impairment, anxiety and post-traumatic stress disorder. That the appellant had a 2% future risk of epilepsy as a result of head injuries. Mpho Manama the clinical psychologist in her report had recorded that the accident had a negative impact on the appellant psychological functioning, and that her functioning seems to be moderately impaired. Further that the accident had an impact on the appellant's general health and that this had subsequently affected her interpersonal functioning. Miyelani Molemi the occupational therapist in her report had recorded that the appellant is still experiencing pain in her right upper limp and headaches. That the appellant had stopped playing netball as a result of the injuries sustained when she was involved in a car accident. She concluded by stating that the appellant's amenities of life have been negatively affected as a result of the accident related injuries.

 

[12]         In NK obo ZK v MEG for Health of Gauteng Provincial Government[3] Wallis JA said:

 

"As was said by Nicholas JA in Southern Insurance Association Ltd v Bailey NO, this court has not adopted a functional determination as to how general damages should be awarded. It has constantly preferred a flexible approach, determined by the broadest general considerations, depending on what is fair in all the circumstances of the case. We do not have to determine what the award will be used for - its purpose or function. What we must consider is the child's loss of amenities of life and his pain and suffering".

 

[13]         It is not in dispute that the appellant had sustained serious injuries as a result of the accident. The respondent has already made an offer which is unacceptable to the appellant. By making an offer to the appellant, the respondent is satisfied that the appellant is entitled to be compensated for general damages. What this court must determine is what will be a fair and reasonable award to be awarded to her. The appellant's counsel in substantiating the appellant's claim had referred this court to several previous decided cases in which awards were made in which the injuries sustained by claimants in those matters were more or less similar to the appellant's case. The appellant's counsel submitted that a fair and reasonable amount to awarded to the appellant as general damages is the sum of R800 000.00.

 

[14]        It is trite that past awards are merely a guide and are not to be slavishly followed, but they remain a guide nevertheless. It is also important that awards, where the sequelae of the accident are substantially similar, should be consonant with one another across the land. (See NK obo ZK v MEG for Health of Gauteng Provincial Government). However, it will not be easy to find exact similar cases in order to make a comparison. One will always rely on the one that is the closest to the matter before you.

 

[15]         In the case a hand, the neurosurgeon had opined that the appellant had a mild head injury and that there is no objective evidence for mental disturbance. Further that the appellant had a significant memory impairment and post­ traumatic stress. However, in relation to memory impairment and post­ traumatic stress, the neurosurgeon had deferred that to the neuropsychologist and psychiatrist to make an opinion on that.

 

[16]         The appellant did not file the expert reports of the neuropsychologist and psychiatrist as suggested by the neurosurgeon. By deferring the opinion in relation to the appellant's significant memory impairment and post-traumatic stress, the neurosurgeon was implying that it was not within his field to make an opinion on that. The court was therefore denied an opportunity to know what the opinion of those experts would have been in relation to the impact these injuries had on the appellant. Taking into consideration the injuries sustained by the appellant, the opinions expressed by various experts and past cases, in my view, R500 000.00 is a fair and reasonable amount to be awarded to the appellant for general damages.

 

[17]            Turning to the future loss of earnings, the experts in their reports which the plaintiff had relied on, are all in agreement that the accident had an impact on the appellant's occupational functioning and career progression. The court a quo has found the opinions of the experts to be unreliable, and decided not to award the appellant future loss of earnings. It is trite that courts are not bound by the views of any experts. The court make the ultimate decision on issues on which experts provide an opinion. (See Road Accident Fund Appeal Tribunal v Gouws and Another[4]). The court a quo has given reasons why it did not place reliance on the opinions of the experts in arriving at the decision not to award future loss of earnings. What this court must determine is whether the court a quo had erred in that regard.

 

[18]         The clinical psychologist Mpho Manama in her report has stated that the accident had an impact on the appellant psychological functioning. The appellant's functioning seems to be moderately impaired. That according to assessment findings the appellant presented a poor academic progress, poor attention and concentration, depression and anxiety which has been precipitated by the accident and the injuries sustained. Further that the accident had an impact on the appellant's general health and that this has subsequently affected her interpersonal functioning.

 

[19]         The occupational therapist Ms Molemi has stated that from a physical point of view, when regard is taken of the results obtained, the appellant is only suited to handle up to low range of medium category of work. The appellant will however be precluded from performing heavy and very heavy type of work when considering her still symptomatic right arm and reported headache. The expert opines that the appellant's inaccuracy level on administrative related tasks and her being prone to make errors together with indicated cognitive limitation will have a negative effect on occupation performance. That should the appellant secure work in this capacity, she will need a supervisor or an overseer to ensure accuracy of work done. Her conclusion is that the appellant will be rendered a vulnerable employee.

 

[20]         The industrial psychologist has noted that the appellant has been affected from a cognitive point of view by the accident. That the appellant will not achieve her pre-accident academic postulations as noted by the educational psychologist that she is left with grade 11 level of education. Further that with the appellant's level of education she will be subjected to depending on her physical strength to be able to secure and maintain employment in future. The expert opines that due to her residual physical capacity the appellant will struggle to secure employment in the open labour market. The expert in her conclusion opines that the accident had resulted in deleterious effects.

 

[21]         The actuary One Pangaea has done the calculations of the alleged past and future loss of earnings suffered by the appellant. The actuary has found that the appellant had suffered past loss of earnings despite the industrial psychologist having found that there was no past loss of income incurred due to the accident. Since the appellant is not appealing against the award for past loss, I will not take this issue any further. According to the actuary, with regard to pre-accident income, the appellant at the time of the accident was in grade 11 and would have obtained grade 12 and proceeded to obtain NQF level 5 certificate. Thereafter the appellant would have entered the open labour market (assumed January 2015) earning at Paterson level 83 R242 000 per annum (assumed median quartile, total package, Koch 2019). That the appellant's earnings would have increased linearly, to Paterson level C1/C2 an average of R421 000 per annum (assumed median quartile, total package, Koch 2019) by the age of 45 years. Thereafter, the appellant's earnings would increase with inflation until the retirement age of 65.

 

[22]         With regard to post-accident income, the actuary had noted that the appellant had failed grade 12 twice and dropped out. The appellant then completed level 3 in financial management at Ekhuruleni West TVET College. The appellant would have entered the open labour market at Paterson level A2 earning R111 000 per annum (median quartile, Basic Salary. Koch 2019). The appellant's earnings will have increased linearly, to Paterson level 83 by the age of 45 years earning 205 000 per annum (median quartile, Basic Salary, Koch 2019). Thereafter, the appellant's earnings would increase with inflation until the retirement age of 65 years.

 

[23]         The appellant at the time of the accident was in grade 11. Prior to the accident she had failed grade 8 once. After the accident the appellant had passed grade 11 and progressed to grade 12. However, she had failed grade 12 twice and decided to drop out of school. After dropping out of grade 12 she enrolled for a certificate in project management which she went up to level 3. According to the educational psychologist, after completing level 3 the appellant would finally be in possession of level 4 which is equivalent to grade 12 (NQF level 4). One of the reasons that the court a quo considered in refusing to award the appellant's future loss of earnings was that even though the appellant did not complete grade 12, the level 3 certificate which the appellant had obtained was equivalent to grade 12, and therefore the accident did not have any impact on her future loss of earnings. The question is whether the court a quo was correct in this approach.

 

[24]         Before the court a quo were the expert reports of the appellant only. Even though the matter was initially defended, the respondent did not file any expert reports to counter the appellant's expert reports. All the appellant's experts are in agreement that the accident did have an impact on the appellant, and that her earning capacity and likely future earnings have been impacted owing to the injuries sustained as a result of the accident. Further that she is no longer an equal competitor in the open labour market and her opportunities are limited compared to her pre-accident scenario. That the appellant is left injured and less resilient to cope with the stress of daily life with her serious injuries.

 

[25]         Basically the version of the appellant remained uncontested as the respondent did not file any expert reports. The court a quo without any expert reports to counter the appellant's version, found that the appellant's expert reports were unreliable. The experts in their reports have raised expert opinions which are within their field which are not within the courts' field. In Tshwane v Nambiti Technologies[5] Wallis JA said:

 

"Judges do not ordinarily have the qualifications, in the absence of expert testimony to assist them, to make judgments on the weight to be attached to reasons for taking technical and strategic decisions in the field of technology".

 

[26]         Even though the Nambiti case relates to the issue of technology, it is still relevant to the case at hand, which basically warn Judges to express opinions on the field which are not within their expertise without the assistance of expert testimony. The court a quo had rejected the expert opinions of the appellant's experts without the assistance of any expert testimony, and in my view, had misdirected itself. Due to the sequelae of the injuries sustained, the appellant occupational functioning had been diminished and she will no longer be able to compete in the same light as her more able-bodied competitors. She has therefore been rendered a vulnerable competitor in the open labour market, and will suffer from discrimination in terms of the type of employment she will be able to accept or pursue in the open labour market. The court a quo has therefore erred in dismissing the appellant's claim for future loss of earnings.

 

[27]         What remains is to determine the appropriate contingency deductions to be applied. It is trite that the determination of the allowances for contingencies involves, by its nature, a process of subjective impression or estimation rather than objective calculation. In Road Accident Fund v Guedes[6] it was held that the calculation of the quantum of a future amount, such as loss of earning capacity is not a matter of exact mathematical calculation, but such inquiry is speculative and a court can therefore only make an estimate of the present value of the loss that is often a rough estimate.

 

[28]         The appellant was born on 4th September 1993 and the accident occurred on 22nd July 2012. At the time of the accident the appellant was 19 years old and still in grade 11. The appellant had failed grade 8 prior to the accident. At 19 and still in grade 11 and also having failed grade 8 suggest that the appellant was not one of those brightest learners. Even though the appellant had dropped out of school in grade 12 after failing twice, she went on to equip herself at a TVET College with a certificate which is equivalent to grade 12. This is one of the reasons that led to the court a quo not to award the future loss of earnings. In my view, the court a quo concerns could have been addressed by applying a higher contingency deduction than normal.

 

[29]         The appellant has never been employed and the actuarial calculations depicts two scenarios, scenario 1 employable as unskilled worker; and scenario 2 that of unemployable. After applying contingency deduction on a sliding scale which comes to 30% on scenario 1 the postulated loss amounted to R2 610 201.00 whilst on scenario 2 it amounted to R3 661 198.00. Counsel for the appellant has submitted that it would be fair and equitable to work on the median of the two scenarios in the actuarial report. That would entail adding the two scenarios and dividing them by two. Taking into consideration the age of the appellant at the time of the accident, that she was able complete a certificate in financial management, has never worked even up to date, the current economic situation in the country which does not give a guarantee that the appellant will be employed, in my view, the submission by counsel for the appellant is a fair and reasonable one.

 

ORDER

 

[30]         In the result the following order is made:

 

30.1     The appeal is upheld.

 

30.2     The order of the court a quo is set aside and substituted with the following:

 

30.2.1 The plaintiff succeeds in her claim for compensation against the defendant.

 

30.2.2 The defendant to pay the plaintiff the sum of R4 358 237.90 made up as follows:

 

a.	General damages:	R500 000.00
b.	Future loss of earnings:	R3 135 699.50
c.	Past loss of earnings:	R722 538.40

 

30.2.3       Undertaking in terms of section 17(4) of the Road Accident Fund Act 56 of 1996 in respect of 100% of accident related future medical, hospital and related expenses.

 

30.2.4       The defendant to pay the costs of the action.

 

KGANYAGO ADJP

JUDGE OF THE HlGH COURT OF SOUTH AFRICA,

LIMPOPO DIVISION, POLOKWANE

 

I AGREE

 

MULLER J

JUDGE OF THE HIGH COURT OF  SOUTH AFRICA,

LIMPOPO DIVISION, POLOKWANE

 

I AGREE

 

MONENE J

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

LIMPOPO DIVISION, POLOKWANE

 

APPEARANCES:

 

Counsel for the appellant:	Adv NJ Potgieter
Instructed by:	Kuaho Attorneys
For the respondent:	In default
Date heard:	12th May 2023
Electronically circulated on:	12th June 2023

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