Sotomela v Road Accident Fund (4391/2014) [2021] ZAECPEHC 29 (23 April 2021)

IN THE HIGH COURT

OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

CASE NO. 4391/2014

Date heard: 23 April 2021

In the matter between:

ANELE

SOTOMELA

Plaintiff

and

THE

ROAD ACCIDENT FUND

Defendant

REASONS FOR ORDER

RUGUNANAN J

[1] Following the defendant’s non-appearance on 23 April 2021 when the matter was called for trial, the plaintiff proceeded under uniform rule 39(1) to prove his remaining claim for damages for loss of earnings and / or loss of earning capacity in so far as the burden lay upon him.

[2] Plainly, the defendant was in default of appearance.[1]

[3] The plaintiff, at the age of 24, suffered multiple and extensive bodily injuries[2] in a motor vehicle collision on 8 December 2012. Liabilitya on the merits is not in issue[3], nor are general damages, past hospital expenses, and future hospital and related expenses - such heads of damages becoming settled, the last-mentioned on tender of a certificate of undertaking.

[4] On the plaintiff’s remaining claim, the issue for determination turned on whether the calculation[4] of his loss by actuaries Arch Consulting ought to be accepted.

[5] After hearing testimony from the plaintiff and his expert witness, Ben Moodie, an Industrial Psychologist, I granted an order in terms of the draft attached hereto as “Annexure SR” and stated that reasons would be furnished later.

[6] Such reasons as are stated hereunder are couched without undue emphasis on the minutiae of the evidence.

[7] Among the extensive bodily injuries suffered by the plaintiff is a closed head injury described as a mild traumatic brain injury with a consequent mild neurocognitive disorder.[5] The brain injury is responsible for changes in mental activity[6] associated with memory impairment, learning difficulties and other complications as to which the plaintiff testified.

[8] The facts in support of the plaintiff’s claim are pleaded in the following terms:[7]

“Future loss of earnings and / or loss of earning capacity: R5 289 392.00

The … claim … has been calculated based on the medico-legal reports filed of record … and is premised on the future uninjured career path, progression and earnings of the plaintiff as detailed per scenario 1 under paragraph 5 of the … report of Mr B Moodie, an industrial psychologist, dated 22 August 2018, as read together with scenario 1 under paragraph 2.3 of the actuarial report of Arch Actuarial Consulting, dated 4 February 2021; and further premised on the injured career path and earnings of the plaintiff as per paragraph 7 of the said report of Mr B Moodie, as read together with paragraph 2.4 of the said actuarial report, and with the application of a future uninjured contingency deduction of 25% and a future injured contingency deduction of 35%, with the said future injured contingency deduction being in consequence of the residual difficulties and facts detailed in the said report of Mr B Moodie, is claimed in the aforesaid amount, as capped …”

[9] Except for the reports by Mr Moodie and Arch Consulting, the defendant admitted all expert medico-legal reports filed by the plaintiff. Among them are notably those by an orthopaedic surgeon[8], a neurosurgeon[9], a clinical psychologist[10] and an occupational therapist[11]. The admission traverses the contents of the reports and opinions by the experts being received into evidence without the necessity for formal proof.[12]

[10] Accordingly, the plaintiff’s compromised earning capacity constituting a loss which diminished his estate is not in issue.[13] For present purposes the onus only lay upon him to quantify or compute that loss, the essence of the computation being to compensate him for his loss of earning capacity.[14]

[11] By way of a brief excursus, the defendant procured reports from its own experts, an industrial psychologist and a consultant actuary. These reports were not filed for the reason that approval, due to circumstances out of the hands of the claims handler, could not be obtained.[15]

[12] The plaintiff’s testimony, supplemented and corroborated by the admitted medico-legal reports, is that he is employed in the South African National Defence Force (SANDF) since 2009. Prior thereto he held employment as a general worker in a construction company. He currently holds the rank of Corporal and primarily performs access control and security related duties. He is required to carry a firearm daily. He is short-tempered and easily angered[16] and complains of frequent headaches and facial numbness and is obliged to take untimely breaks which he is not allowed to do.

[13] He is required to stand for long periods of time and experiences chronic pain and discomfort, particularly in his lower back and left arm and when lifting heavy objects such as trunks containing weaponry.[17] He is forgetful and is unable to retain information. In the course of his duties he is obliged to write down messages that are telephonically relayed to him, at times being forgetful of what must be written if not done immediately.

[14] In the past year due to the Covid-19 pandemic he has not undergone a medical and / or competency assessment. He is concerned that he might not make the grade for such an assessment should this be undertaken and in which event his employment tenure and / or chances of promotion[18] will be placed at risk.

[15] His impediments, particularly forgetfulness, affected his attempts to study at tertiary level,[19] post-accident, and precluded him (in 2013) from pursuing an introductory course geared towards an LLB degree and from completing modules in pursuit of a BMIL qualification in the field of Security and African studies (in 2014).[20] Had he completed the latter degree he would have applied for a position in the intelligence department within the SANDF. A law degree would have enabled him to move into the private sector.

[16] On the basis of the above and the plaintiff’s biographical information, including the opinions expressed by the experts in the admitted medico-legal reports, Mr Moodie conducted an assessment of the plaintiff’s pre-accident and post-accident career progression and income earning potential. He documented his conclusions in a report and confirmed its contents in oral evidence.[21]

[17] Pre-accident, it is postulated that the plaintiff would have studied law while maintaining his current employment in access control. On completion of his studies, two scenarios are proposed; only the first being relevant for present purposes (it being evident from the claim as pleaded)[22]. In this scenario, the plaintiff completes ‘articles of clerkship’ and is inter-departmentally transferred to the Department of Justice, earning a median salary at Paterson level D2 with inflationary increases until retirement at age 65.[23]

[18] Post-accident, it is postulated that the plaintiff will retain his current employment with annual earnings of R314 000 plus inflationary increases until retirement at age 60. His impediments and subjective complaints will be intrusive factors in his work environment, making it difficult for him to outperform his counterparts.[24] For these reasons and considering the evidence presented, plaintiff’s counsel, Mr Paterson, correctly submitted that an elevated general contingency deduction is warranted in the post-accident scenario.

[19] The plaintiff’s postulated pre-accident income level and current post-accident earnings have been assimilated into the calculation by actuaries Arch Consulting, prefactoring general contingencies of 25% and 35% respectively for these scenarios resulting in a quantified loss of R5 289 392 after capping. Acknowledging the discretionary power accorded to a court, the contingency deductions, in my view, not being unreasonable and fully justified given the uncontested facts and circumstances, and thus the court’s acceptance of the calculation. In summary, the evidence presented by the plaintiff insofar as the burden lay upon him accords with the formulation of his claim as pleaded and the onus accordingly discharged.

[20] In the circumstances the draft order marked “Annexure SR” hereto, reference to agreement between the parties being deleted,[25] is made an order of court.

________

M. S. RUGUNANAN

JUDGE OF THE HIGH

COURT

Appearances:

For the Plaintiff: Adv. N. M. Paterson

Instructed by:

John B. Scott Attorneys

Plaintiff’s attorneys

6 Bird Street

Central

Port Elizabeth

(Ref: JBS/S0275)

Tel: 041-582 2238

Email: hannelie@jbsainc.com

For the Defendant:

No Appearance

Reasons handed down electronically on 07 May 2021 at 11h30.

[1] Knowledge of the trial date being at all times attributed to the defendant through its claims handler who confirmed by email dated 22 April “… we leave it up to the court to decide on a reasonable outcome and judgment herein.”, as per Exhibit A3 read with rule 37 minutes, 13 March 2021 and per Exhibit B. See also Ferreiras (Pty) Ltd v Naidoo (69094/2014) [2017] ZAGPJHC 392 (11 December 2017) at paragraph [12] where default of appearance connotes absence of a party; also Masango v Kimberley Clark of South Africa (Pty) Ltd (24922/06) [2007] ZAGPHC 58 [22 May 2007] at paragraph 9 and the authority cited therein … “ … he who does not attend on the day fixed [is] to be accounted a dallier and defaulter …”

[2] Amended POC, in Exhibit C - Bundle of documents, paragraph 8

[3] Conceded in October 2016, Joint practice Note, 6 October 2020, paragraph 2.2

[4] Dated 4 February 2021 and introduced into evidence under affidavit

[5] Amended POC paragraph 8

[6] Otherwise known as mentation, report Moodie, 29 quoting from neurosurgeon Copley

[7] Amended POC, Exhibit C, bundle of documents. Notice of intention to amend on date of trial was given to the defendant on 22 April 2021, to which no objection was raised

[8] Dr V Oelofse 13 October 2016

[9] Prof I B Copley 4 July 2018

[10] Dr H Swanepoel 26 July 2018

[11] Ms C Mercer 12 July 2018

[12] Minutes rule 37, 13 March 2021, paragraphs 1.1 to 1.9 and 2

[13] see Deysel v Road Accident Fund (2483/09) [2011] ZAGPJHC 242 (24 June 2011) at paragraphs [17] to [19] and the reference therein to Rudman v Road Accident Fund [2002] 4 All SA 422

[14] Bane and Others v D”Ambrosi 2010 (2) SA 539 (SCA) at 547E

[15] Minutes rule 37, 13 March 2021, paragraph 3

[16] report Moodie, 21 quoting from clinical neuropsychologist Swanepoel

[17] report Moodie, 21 quoting from clinical neuropsychologist Swanepoel

[18] report Moodie, 21 quoting from clinical neuropsychologist Swanepoel

[19]

UNISA and Stellenbosch University –Report Moodie, 11

[20] A degree for which he enrolled at Stellenbosch

[21] The report is dated 22 August 2018

[22] Amended POC, Exhibit C

[23] Report Moodie, 18

[24] Report Moodie 29

[25] Correctly brought to my attention by Mr Paterson prior to the handing down of these reasons