Moeketsi v Road Accident Fund (5651/2016) [2021] ZAFSHC 214 (30 July 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Case No: 5651/2016

In the matter between: -

THOLOANA

BEN MOEKETSI

PLAINTIFF

and

THE

ROAD ACCIDENT FUND

DEFENDANT

CORAM: VOGES, AJ

HEARD ON: 27 JULY 2021

DELIVERED ON: 30 JULY 2021

[1]

ACCIDENT

On 4 October 2015 the Plaintiff was involved in a collision between the car he was driving and another vehicle driven by one Macheli.

[2]

INJURIES

The plaintiff sustained the following injuries:

2.1. Open fracture right femur

2.2. Right elbow fracture

2.3. Laceration on cheek

2.4. Neck injury

2.5. Back injury

2.6 Right knee injury

2.7 Mild traumatic brain injury (Post-Concussion Syndrome)

[3]

SEQUELAE

As a result of the injuries sustained the Plaintiff suffers inter alia the following sequelae:

3.1 Pain and discomfort

3.2 Loss of amenities of life

3.3 Had to undergo medical treatment and operations

3.4 Possible loss of earnings or earning capacity in future.

[4]

DEFENDANT

The defendant is the Road Accident Fund. In terms of section 17(1) of the Road Accident Fund Act, 56 of 1996 the Defendant (RAF) is obliged to compensate the Plaintiff for damages sustained in this accident.

[5]

CLAIM

In this action the Plaintiff claims R4 511 054.00 compensation from the Defendant as a result of the injuries sustained by him, calculated as follows:

5.1 Past medical and hospital expenses: R5000.00

5.2 Estimated future medical treatment : R95 000.00

5.3 Past loss of income: R159 896.00

5.4 Estimated future loss of income: R3 351 158.00

5.5 General damages: R900 000.00

TOTAL

R4 511 054.00

[6]

MERITS

The merits of the matter had been settled on the basis that the Defendant is liable for 100% of the proven or agreed damages of the Plaintiff. An order to this effect was issued on 6 June 2017.

[7] After unsuccessful attempts to settle there was no representative for the defendant present at the hearing of the matter. The Plaintiff proceeded with the leading of evidence. The case can accordingly only be decided on the evidence presented by the Plaintiff.

[8]

EVIDENCE RE QUANTUM

The Plaintiff was the only witness to testify and reports of the following experts were handed in by means of affidavits:

8.1 Johan Jacobus Christoffel Sauer (Actuary)

8.2 Carien Smit (Occupational Therapist)

8.3 Louis Francois Oelofse (Orthopaedic surgeon)

8.4 Dennis Kitavuja Mutwaba (Neurosurgeon)

8.5 Jacobus Johannes Schutte (General practitioner)

8.6 Lindelwa Grootboom (Clinical Psychologist)

8.7 Ben Moodie (Industrial Psychologist)

8.8 Daniel Hoffman (Plastic, Reconstructive & Cosmetic Surgeon)

[9] From the evidence it transpired that the Plaintiff was diagnosed with a Glasgow Coma Scale of 12/15 at the scene of the accident. He was transported to Pelonomi Hospital and an Open Reduction and Internal Fixation of his right femur was performed the same day. He was hospitalized until 18 October 2015.

[10] After his discharge he had to get by on crutches for several months and underwent further extensive treatment for his right upper leg/femur and right forearm, which included an Open Reduction and Internal Fixation of the forearm. In 2017 he was diagnosed with avascular necrosis of his right hip joint.

[11] As a result of the injuries sustained the Plaintiff still experiences difficulty with walking, he has a shortened right arm, he cannot do physical labour, suffers from forgetfulness, chronic pain and headaches, depression and disfigurement due to scarring over his face, leg, arm and chest. It is clear that the injuries had a profound impact on all aspects of his life.

[12] Future treatment, as recommended by Dr Oelofse will inter alia, include a total hip replacement, a knee replacement and physiotherapy. This will inevitably lead to frequent absenteeism from work.

[13]

HISTORY OF EMPLOYMENT

The Plaintiff obtained a B A degree and at the time of the accident he was employed as HR Officer by the Department of Justice. He was absent from work until 18 January 2016. On his return to work he was temporarily accommodated as switch board operator due to his physical impairment after the accident. During May 2016 he managed to secure a position as HR Practitioner with the Office of the Chief Justice, a post he applied for prior to the accident. Had the accident not occurred, the Plaintiff would have secured this position by October 2015. There was thus an eight-month delay amounting to a loss of past earnings of R57 394.00, as calculated by the Industrial Psychologist, Mr. Moodie.

This delay further impacts on his ability to progress to higher notch earnings in the same way should the accident not have occurred.

[14] The experts Oelofse, Smit and Moodie are of the opinion that the Plaintiff will never be able to do physical labour again. He is considered to be a vulnerable employee within the open labour market and must be accommodated in a sedentary position. If so, he will, in the opinion of dr Oelofse, be able to work to the age of 55 – 60 years. If not, he will only be able to work for another 5 to 10 years.

[15] Although he is currently doing sedentary work, he experiences difficulty due to his impaired mobility, inability to lift heavy items, constant pain and lack of concentration. This affects his ability to perform productively and negatively impacts on promotional opportunities.

Industrial psychologist Moodie estimates his loss of work capacity in the region of 20 – 25% and opines that a post-morbid contingency deduction should be applied.

[16]

LEGAL PRINCIPLES

In Rudman v Road Accident Fund 2003(2) SA 234 (SCA) at par 11 it was said that a physical disability which impacts on the capacity to an income does not, on its own, reduce the patrimony of an injured person. There must be proof that the reduction in the income earning capacity will result in actual loss of income.

[17] In Herman v Shapiro & Co 1926 TPD 367 at 379 the following was said:

“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 Court is very little more than an estimate, but even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages.”

[18] In terms of South African Law, a claim for loss of earnings is in fact the Plaintiff’s loss of earning capacity and not his physical loss of income. The following dicta in Santam Versekeringsmaatskappy Beperk v Byleveldt, 1973 (2) SA 146 te 150C-D applies:

“Die verlies van geskiktheid om inkomste te verdien, hoewel gewoonlik gemeet aan die standaard van verwagte inkomste, is ‘n verlies van geskiktheid en nie ‘n verlies aan inkomste nie.”

[19] It is clear from the evidence adduced by and on behalf of the Plaintiff that he indeed suffers from a loss of earning capacity and that he should thus be compensated in this regard.

[20] It is settled law that a trial court has a wide discretion to award what it in the particular circumstances considers to be a fair and adequate compensation to the injured party for his bodily injuries and their sequelae: AA Mutual Association Ltd v Maqula 1978 (1) SA 805 (A) AT 809

[21] There are no hard and fast rules to be applied in deciding what a fair and adequate compensation to an injured party should be. Arbitrary considerations must inevitably play a part. Any enquiry into future loss of income is by nature speculative because it involves prediction of the future: Southern Insurance Association v Baily NO 1984 (1) SA 98 (AD)

[22] In respect of actuarial calculations it was said in Southern Insurance Association Ltd, v Bailey NO, supra at 114E:

“… while the result of an actuarial computation may be no more than an ‘informed guess’ it has the advantage of an attempt to ascertain the value of what was lost on a logical basis”

[23]

ACTUARIAL CALCULATION

The actuary, Mr Johan Sauer, took into account the evidence of the Industrial Psychologist (Mr. Moodie) and based his calculations of the Plaintiff’s loss of income on two scenarios, namely 1) if accommodated in light duty/sedentary position and 2) if not accommodated in light duty/sedentary position. Due to the circumstances of the Plaintiff pre- and post- morbid the first scenario finds application.

The actuarial loss of income of the Plaintiff post-morbid when accommodated in a light duty/sedentary position is set out as follows:

Had the accident not happened Now that the accident has happened Difference: Loss Past earnings Less contingency deductions (5%/5%) 1 373 198 68 660 1 204 886 60 244 Total loss of past earnings 1 304 538 1 144 642 159 896 Future earnings Less contingency deductions (10%/30%) 6 722 835 672 284 5 566 829 1 670 049 Total loss of future earnings 6 050 552 3 896 780 2 153 772 Total loss of earnings 2 313 668 Less RAF CAP 209 626 Total capped claim 2 104 042

[24]

CONTINGENCIES

In exercising its discretion in respect of what a fair and adequate compensation would be, a court must allow a discount for contingencies or the “vicissitudes of life”. The amount of any discount may vary, depending upon the circumstances of the case.

[25] In this matter there are various considerations which impact on the contingency deduction. The Plaintiff was 34 years old at the time of the accident. He managed to retain his employment at the same salary and even secured a more profitable position. He was, and still is, accommodated by a sympathetic employer. There is, however, no guarantee that this will be the position until retirement, especially not in light of his minimized work performance.

Taking the above into account I consider the 10% contingency deduction in the uninjured scenario in respect of the Plaintiff’s future earnings and the 30% deduction in the injured scenario to be fair and appropriate.

[26]

GENERAL DAMAGES

As the Plaintiff sustained serious and permanent orthopaedic injuries as well as a mild brain injury he must be compensated under this head of damages. The awarding of general damages is within the discretion of the trial court. I was referred to a number of comparable cases and was guided by it. No two cases, however, are ever exactly the same as far as injuries, sequelae, future prediction, etcetera is concerned. I am of the opinion that an amount of R750 000.00 would be fair in the circumstances.

[27]

FUTURE MEDICAL EXPENSES

Thus far the Plaintiff’s past medical expenses have been covered by his medical aid. As it is clear from the evidence that the Plaintiff will require further medical treatment in future, an order in terms of section 17 (4) (a) of the Road Accident Fund Act would be appropriate in respect of the claim for future medical treatment.

[28]

ORDER

The following order is issued:

1. The Defendant shall pay the Plaintiff the sum of R2 708 000.00 (two million seven hundred and eight thousand rand) in respect of loss of earning capacity and general damages, set out as follows:

1.1 Loss of past earnings : R .58 000.00

1.2 Future loss of earnings : R 1 900 000.00

1.3 General damages : R 750 000.00

2. The Defendant shall pay the sum of R2 708 000.00 into the Trust account of the Plaintiff’s Attorneys with Trust account details:

Account holder:

VZLR INC

Branch:

ABSA Business Bank Hillcrest

Branch code: 632005

Type of account: Trust account

Account number: 3014-7774

3. In the event of default on the above payment, interest shall accrue on such outstanding amount at 7% (at the mora rate of 3.5% above the repo rate on the date on this order, as per the Prescribed Rate of Interest Act, 55 of 1975, as amended) per annum calculated from due date, as per the Road Accident Fund Act, until date of payment.

4. The Defendant is to request and load payment within 14 (fourteen) calendar days from date of this order, with proof of same to be sent to the Plaintiff’s attorneys within 5 (five) calendar days of doing same.

5. The Defendant shall furnish the Plaintiff with an undertaking, in terms of section 17(4)(a) of Act 56 of 1996, in respect of future accommodation of the Plaintiff in a hospital or nursing home or treatment of or the rendering of a service or supplying of goods of a medical and non-medial nature to the Plaintiff (and after the costs have been incurred and upon submission of proof thereof) arising out of the injuries sustained in the collision which occurred on 4 October 2015

6. The Defendant to pay the Plaintiff’s taxed or agreed party and party costs, up to and including the trial dates of 27 July 2021 and the date of this order for the instructing and correspondent attorneys, which costs shall include, but not be limited to the following:

6.1 The reasonable taxable reservation fees, of the following experts:

Dr L F Oelofse - Orthopaedic Surgeon

Dr J J Schutte

General Practitioner

Ms C Smit - Occupational Therapist

Mr B Moodie

Industrial Psychologist

Mr J Sauer - Actuary

Dr D K Mutyaba - Neurosurgeon

Ms Lindelwa Grootboom - Clinical psychologist

Dr D Hoffman - Plastic Reconstructive Cosmetic Surgeon

6.2 The above-mentioned payment with regard to costs shall be subject to the following conditions:

6.2.1 The Plaintiff shall, in the event that costs are not agreed, serve the notice of taxation on the Defendant’s attorney of record;

6.2.2 The Plaintiff shall allow the Defendant 14 (fourteen) calendar days to make payment of the taxed costs

6.3 In the event of default on the above payment, interest shall accrue on such outstanding amount at the mora rate of 3.5% above the repo rate on the date of taxation/settlement of the bill of cost, as per the Prescribed Rate of Interest Act, 55 of 1975, as amended, per annum, calculated from due date until the date of payment.

M. VOGES, AJ

On behalf of the plaintiff: Adv JC Van Eeden

Instructed by:

GRIMBEEK ATTORNEYS

c/oDU

PLOOY INC

BLOEMFONTEIN