Nsibande v Road Accident Fund (A174/2020) [2021] ZAGPPHC 833 (3 December 2021)

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

CASE NO: A174/2020

In the matter between:

MANDLENKOSI

PATRICK NSIBANDE Appellant

And

THE ROAD ACCIDENT FUND Respondent

JUDGMENT

MOTHA AJ (TOLMAY et PHAHLANE JJ CONCURRING)

INTRODUCTION

[1] This is an appeal against the judgment of Senyatsi AJ delivered on 4 September 2019. The Appellant, Mandlenkosi Patrick Nsibande, appeals, with the leave of the Court a quo, against the award of R3 397 945.00 (Three million three hundred and ninety seven thousand nine hundred and forty five Rand) in respect of loss of earnings. The Respondent did not oppose the appeal, despite being properly notified of it.

[2] It is common cause that the claim arises from a motor vehicle accident which occurred on 14 January 2008 at Oorsak Road, Boschfontein, Rustenburg. With merits having been settled, the court a quo was called upon to determine general damages, loss of earnings and past medical expenses.

THE FACTS

[3] As the result of the accident, the Appellant sustained the following injuries:-

(a) Severe head injury and skull base fracture with permanent neuro-cognitive deficits;

(b) Fracture of the nose leading to deformity;

(c) Fracture of various facial bones;

(d) Whiplash injury.

[4] In quantifying his claim, the Appellant served and filed 13 Expert Medico-legal reports, the Respondent filed none. These reports deal with the extent of the injuries sustained by the Appellant and no opposing opinions were obtained by the Respondent. These reports were also admitted by the Respondent as set out later in this judgement.

[5] The Court a quo captures the essence of all the reports, therefore, it would be an exercise in verbosity to repeat same, save to say the following:

5.1 The Appellant sustained a moderate diffuse traumatic brain injury. He was also diagnosed with a minor neuro cognitive disorder with impairment, predominantly of memory. He has some residual deformity of the nose as well as nasal airway obstruction. He also finds his facial appearance as a source of social embarrassment due to permanent facial scarring and disfigurement.

5.2 Janene White, the Industrial Psychologist, records that Mr. Nsibande reportedly obtained grade 12 and N5 Electrical Engineering Certificate. He commenced his career as plant attendant on 19 May 2004 with Lonmin Mine and reportedly held the same capacity at the time of the accident. She also records that Mr. Nsibande reports that he, but for the accident, was going to start his electrical apprenticeship on the Monday after the accident with the training centre of Lonmin Mine in Randfontein. Mr Nsibande reported that he would have qualified as an electrician and would have been an artisan.

5.3 Finally, Janene White opines “that should he face the likely situation (considering that Lonmin Mine has been acquired by Sibanye and employee numbers must be reduced), where he has to secure alternative employment he would have to find an employer that is willing to accommodate him with his accident related neurocognitive dysfunctions in a working environment conducive to the facial scarring. Finding such employment may be hard to come by competing against non-brain injured individuals who will not be suffering from his neurocognitive deficits and who may be more productive as a result.” It is accordingly clear that the Appellant is a vulnerable employee and requires a sympathetic environment to maintain his employment.

5.4 Greggory Whitaker, the Actuary, in as far as the loss of income is concerned, suggests the following contingencies:

· Past loss of income uninjured 5.00% contingency deduction.

· Past loss of income injured 5.00% contingency deduction.

· Future loss of income uninjured 15.00 % contingency deduction.

· Future loss of income injured 25.00 % contingency deduction.

[6] The contingencies applied by him seem to be appropriate under the circumstances. With these contingencies applied, the total net loss of earnings is calculated to be R4 561 240 – 00.

THE PRE-TRIAL

[7] It is important to note that certain agreements were reached between the parties and certain admissions were made by the Respondent. On 7 May 2019 the Appellant and the Respondent held a Pre-Trial Conference during which the Respondent recorded several admissions which were dispositive of the matter. I will return to these admissions.

[8] At this point it is apposite to refer to the law on the importance of Uniform Rule 37 of the Uniform Rules of Court. This is a procedural step which provides for not only the limiting of issues but also promoting the effective disposal of the litigation process.

[9] It is apt to refer to Hendricks v President Insurance Co Ltd.[1] In Price NO v Allied-JBS Building Society [2] the following was stated:

“The pre-trial conference conducted under the terms of Rule of Court 37 is designed to afford an opportunity to the parties amongst other matters, to endeavor to find ways of curtailing the duration of the trial by redefining the issues to be tried. One of the methods of doing so is by way of admissions of fact which could lead to the elimination of one or more of the issues raised in the pleadings.”

[10] Referring to Rule 37 in MEC for Economic Affairs, Environmental and Tourism v Kruizenga [3] the Court held the following:

“The Rule was introduced to shorten the length of trials, to facilitate settlements between the parties, narrow the issues and to curb costs. One of the methods the parties use to achieve these objectives is to make admissions concerning the number of issues which the pleadings raise. Admissions of fact made at Rule 37 conference, constitute sufficient proof of those facts.”

[11] The Court in Filta-Matix (Pty) Ltd v Freudenberg[4] held that:

“To allow a party, without special circumstances, to resile from an agreement deliberately reached at a Pre-Trial Conference would, therefore, tend to negate the object of rule 37, which is to limit issues and to curtail a scope of the litigation.”

[12] Admissions made during Pre-Trials should have the same effect as admissions made by a party in the pleadings. It is a truism that the party who makes the admissions is bound by them.[5]

[13] The Appellant (referring to Gordon v Tarnow[6] and also AA Mutual Assurance Association v Biddulph and Another[7]) submitted that a judicial admission of fact is conclusive, rendering it unnecessary for the one party (in whose favour the admission was made) to adduce evidence to prove the admitted fact, and incompetent for the other party, making it to adduce evidence to contradict it. It is accordingly clear that the Respondent was bound by the admissions made and this should have been taken into account by the court a quo.

[14] I now return to the admissions referred to in paragraph 6 supra. In the Pre-Trial Minutes the Respondent admitted all the Expert Medico-legal reports (the contents, opinions expressed and the conclusions reached). The Respondent continued to admit the Actuarial calculation provided by the Appellant and could as a result not deviate from that in argument.

[15] It was further admitted that, if the matter was to proceed to trial, the said report could be used as a basis for argument or settlement of the claim. The Respondent also admitted the past medical and hospital expenses which amounted to the sum of R44 988.44 (Forty Four Thousand Nine Hundred and Eighty Eight Rand and Forty Four Cents) per the vouchers.

[16] The Respondent admitted that the Appellant will undergo and/or receive medical treatment, specialised services in future as stated in the particulars of claim and the various medico legal reports filed on record. As a corollary of these admissions there were no longer any triable issues before the Court. The result thereof was that the Respondent could not go back or deviate from the agreements reached. Ironically the transcript indicates that this was also the stance taken by the court a quo, but this did not follow through in the judgement as the court a quo deviated from this without explaining the reasoning behind it.

GENERAL

DAMAGES

[17] The Court a quo clearly had the issue of general damages in mind, but failed to award, or justify the allocation of any amount in this regard. To this end we refer to the matter of Southern Insurance vs Bailey NO[8] where the court said:

“Indeed, in cases where the damages are large, it is desirable, where it is possible to do so, to itemise the amounts awarded in respect of pecuniary damages (such as loss of earning capacity) and non-pecuniary damages (such as loss of amenities etc).

One reason is that the inquiries involved in making assessments under the respective heads of damages differ in their nature. The one involves patrimonial loss; the other involves loss which is not capable of being measured in money. The problems of assessment are dissimilar. Each head should therefore be given separate consideration.

Secondly, it is of importance that there should be disclosure to the litigants and their legal advisors of the components of the total award, so that they may be in a position to scrutinise it and analyse it.”

[18] Having qualified for general damages on the narrative tests, counsel for the appellant submitted that an amount of R 1 000 000 – 00 (one million Rands) would be an appropriate award. It is, indeed, trite that in determining the quantum for general damages a judge has a large discretion, as correctly pointed out by the court a quo at paragraph 29 of its judgement. A perusal of the cases referred to, the expert reports and consideration of the injuries sustained make it clear that the award referred to above is both fair and reasonable.[9]

LOSS OF

EARNINGS

[19] Having given due consideration to the admissions, contingencies applied and the reasoning set out above, the amount of R4 561 240 - 00 is appropriate and due to the fact that the court a quo did not give reasons for a deviation it should be awarded.

PAST MEDICAL

EXPENSES

[20] Seeing that the vouchers for past medical expenses were provided and not disputed this amount should have been granted. A perusal of the judgment of the court a quo reveals that this issue was not addressed at all, despite the fact that the court was implored to grant same.

MISDIRECTION

[21] As stated in AA Mutual Insurance Assurance Ltd v Maqula[10] it is trite that a Court of Appeal:

“…will not, in the absence of any misdirection or irregularity, interfere with a trial Court’s award of damages unless there is a substantial variation or a striking disparity between the trial Court’s award and what the Court of Appeal considers should be awarded, or unless the Court of appeal thinks that no sound basis exist for the award made by the trial Court.”

[22] A perusal of the judgement shows that the court a quo did not substantiate the deviation for the amount as proposed by the Appellant. We agree with the submission that the Court a quo did not provide a sound basis for the award it made. There is a striking disparity between what this Court considers appropriate, after having regard to the expert reports, pre-trial minutes, and the actuarial calculation, when compared to what the Court a quo awarded. In our view this constitutes a misdirection which would justify an interference by this court.

[23] We accept the contingencies and calculations as postulated by the actuary, and the amount for past medical expenses. Accordingly, we deem it appropriate to award same.

CONCLUSION:

[24] It is clear that the court a quo misdirected itself as no basis was given for the award made and as a result the appeal should be upheld and the amount of R5 606 228-44 should be awarded as compensation to the Appellant.

[25] In the result we make the following Order:

25.1 The appeal is upheld with costs including the costs of the application for leave to appeal.

25.2 The order of the Court a quo dated 4 September 2019 and stamped 12 September 2019 is set aside and replaced with the following:

25.3 The Defendant is ordered to pay to the Plaintiff the amount of R5 606 228.44 (Five Million, Six Hundred and Six Thousand, Two Hundred and Twenty Eight Rand and Forty Four Cents Only) in delictual damages following injuries the Plaintiff sustained in a motor vehicle accident which occurred on 14 January 2008, made up as follows:

HEADS OF DAMAGES

AMOUNT PAST HOSPITAL &

MEDICAL EXPENSES R 44 988.44

LOSS OF EARNINGS R4 561 240.00

GENERAL DAMAGES R1 000 000.00

TOTAL R5 606 228.44

25.4 The amounts are payable 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’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 :1008074

25.5 Should the Defendant fail to make payment of the capital amount on/or before 14 (FOURTEEN) days from date of payment of this Order, 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 payment of this order to date of final payment.

25.6 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 14 January 2008 as and when such costs have been incurred and upon proof thereof (the “undertaking”).

25.7 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:

25.8 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, subject to the discretion of the taxing master, the following experts of whom notice has been given, namely:

25.8.1 Dr T Enslin, Independent Medical Examiner;

25.8.2 Dr D de Klerk, Neurosurgeon;

25.8.3 Dr H Enslin, Orthopaedic Surgeon;

25.8.4 Dr D Le C. Stolp, Ear, Nose and Throat Specialist;

25.8.5 Dr F Colin, Psychiatrist;

25.8.6 Dr L van der Merwe, Opthalmologist;

25.8.7 Dr H Kluge, Maxillo Facial- and Oral Surgeon;

25.8.8 SAI Pretorius, Occupational Therapist;

25.8.9 Ms S van der Merwe, Clinical Psychologist;

25.8.10 Griesel & Janse van Rensburg (A Roos), Audiologist;

25.8.11 Dr J P M Pienaar, Plastic and Reconstructive Surgeon;

25.8.12 Janene White, Industrial Psychologist; and

25.8.13 Gregory Whittaker, Actuary.

25.9 The full fees of Plaintiff’s senior- junior counsel in respect of preparation, consultations pre-trial conference(s), and a day fee for 13 May 2019;

25.10 The reasonable travelling and transportation costs including e-toll fees incurred by and on behalf of Plaintiff for attending the trial and all the medico-legal examinations arranged by Plaintiff’s and Defendant, if any

25.11 The costs of holding all pre-trial conferences, as well as roundtable meetings between the legal representatives for both the Plaintiff and the Defendant;

25.12 The reasonable costs of and consequent to the holding of all experts meetings between the medico-legal experts appointed by the Plaintiff’s, if any

25.13 The costs of and consequent to compiling all minutes in respect of pre-trial conferences and judicial management meetings;

25.14 The reasonable taxable costs of one consultation with the client in order to consider the offer made by the Defendant, the costs to accept it, have it made an order of court and to procure performance by the Defendant of its obligations in terms hereof;

25.15 The reasonable cost incurred in obtaining payment and/or execution of the capital amount mentioned in paragraph 1 above, if any

25.16 The full fees for the preparation and copying charges for the making of 6 (six) sets of the trial bundles.

25.17 Plaintiff is ordered to serve the Notice of Taxation of Plaintiff’s party and party bill of costs on Defendant’s attorneys of record;

26. The Defendant is ordered to pay the Plaintiff’s taxed and/or agreed party and party costs within 14 (FOURTEEN) days from the date upon which the accounts are taxed by the Taxing Master and/or agreed between the parties;

27. 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 applicable rate of interest per annum as from the date of taxation to date of final payment.

28. It is recorded that the Plaintiff and the Plaintiff’s attorneys of record did not enter into any contingency fee agreement.

M P MOTHA

ACTING JUDGE OF

THE HIGH COURT

GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

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 3 December 2021.

Date of hearing: 24 November 2021

Date of judgment: 3 December 2021

Appearances:

For the Applicant:

Adv. PM Van Ryneveld

Instructed by:

Macrobert Incorporated.

For the Respondent: No appearance.

[1] 1993 (3) SA 158 at 166E-F.

[2] 1980 (3) SA 874 (A) at 882D

[3] 2010 (4) SA 122(SCA) at 126

[4] [1997] ZASCA 110; 1998 (1) SA 606 (SCA) at 614C

[5] (A665/2015) [2018] ZAGPPHC608 (20 April 2018) at [30]

[6] 1947 (3) SA 525 at 531- 531

[7] 1976(1) 725 AD at 725H – 735B

[8] 1984 (1) 98 at p112 in fine p113

[9] See Anthony v Road Accident Fund (27454/2013) [2017] ZAGPPHC161 (15 FEBRUARY 2017) Where the court awarded the sum of R1 827 435 - 00 ;Potgieter v Road Accident Fund VI, A4-195;2013 (6A4)QOD 195 (ECP) Where the court awarded R982 000 – 00; Mofokeng v Road Accident Fund VII, B4-12; 2015 (7B4) QOD 12 (GSJ) Where the court awarded R947 000 – 00; Mohale v Road Accident Fund VII,A4-15; 2015 (7A4)QOD 15 Where the court awarded R879 000 – 00 Vakata v Road Accident Fund VII, A4-1; 2014 (7A4) QOD 1 (ECP) Where the court awarded R 858 000 – 00; Hurter v Road Accident Fund VI, A4-12; 2010 (6A4) QOD 12 (ECP) Where the court awarded R827 000 – 00; Dlamini v Road Accident Fund 2012 (6A4) QOD 68 (GSJ) Where the court awarded R762 000 – 00; Monaisa v Road Accident Fund VII, B4-55; 2017 (7B4) QOD 55 (GSJ) Where the court awarded R762 000 – 00; Ramcharan and another v Southern Insurance Association Ltd II, 175; 1971 (2B3) QOD 175 (D) Where the court awarded R679 000 – 00.

[10] 1978 (1) SA 805 (A) at 809B-D