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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)

REPUBLIC OF SOUTH AFRICA

Case Number: 21917/18

 

 

In the matter between:

Sinelwa Margaret Mpama	Plaintiff
and
The Road Accident Fund	Defendant

JUDGMENT

BHOOLA AJ:

Introduction

[1]        The plaintiff has instituted an action against the defendant in which she claims damages in her personal capacity for injuries sustained in a motor vehicle collision that occurred on 16 May 2017 at Tsomo Main Road, Eastern Cape Province when a white Hino truck with registration [….] driven by Prichard Eurawu ('the insured driver'), collided with the plaintiff's motor vehicle (a Nissan with registration [….]), which was stationary at the time. The insured driver failed to observe and stop at a traffic circle and collided with the plaintiff's vehicle. The truck was carrying bricks which fell onto the plaintiff's vehicle. The plaintiff was 40 years old and six months' pregnant at the time. She lost consciousness as a result of the collision and was unconscious for three days. She had to have an emergency caesarean section to deliver her baby as a result of her injuries. She sustained injuries on the right side of her body and was hospitalised for three weeks as a result of the collision.

 

[2]        When the matter came before me, by way of videoconference as per the Judge President's Consolidated Directive of 11 May 2020, plaintiff's counsel appeared before me and informed me that he had that morning engaged directly in settlement discussions with the defendant (represented by a claims handler) given the withdrawal of plaintiff's attorneys of record. The claims handler informed plaintiff's counsel that the defendant conceded 100% liability for injuries suffered by the plaintiff in the motor vehicle collision that occurred on 16 May 2017. The defendant also made an offer on loss of earnings, which was rejected by the plaintiff. The defendant further advised counsel that the claim for general damages was rejected. Counsel informed me that he indicated to the claims handler that the plaintiff intended proceeding with the trial. The defendant was in default of appearance when the matter commenced and I was satisfied that it did not intend appearing. I proceeded to hear the matter in the absence of the defendant. In my view this approach is consistent with avoiding further delays at public cost and ensuring access to justice as the matter was ready to proceed to trial. In doing so I had regard to the judgment of Neukircher J handed down on 15 June 2020 in this Division, K D Dichabeobo GN  v RAF (CASE NO: 18770/16) in which the court expounded on the denial of access to justice that can ensue in such circumstances.

 

[3]        Given the concession as to the merits the only issue in dispute is the quantum (general damages, loss of income, medical expenses) of such damages as the plaintiff may prove to have suffered as a result of the collision that occurred on 16 May 2017. 

             

General damages

[4]        Counsel made submissions and urged me to make a ruling in respect of both general damages and loss of earnings. In doing so he relied on the judgment of ADJP Potterill J in RS v Road Accident Fund[1] which the court castigated the defendant for disputing liability for general damages at the eleventh hour. Counsel submitted that  in casu the same approach should be taken as it was common cause that the plaintiff qualified for general damages. He relied for this submission on the fact that the defendant's clinical psychologist was of the opinion that plaintiff should be compensated for a serious head injury. Other than this expert report the defendant did not file any other medico-legal reports. However, I am of the view that the facts of this matter are distinguishable. In the RS matter the learned ADJP had regard to the fact that the the experts were in agreement, as recorded in their joint minutes, that the pIaintiff had sustained a serious injury. The court (at para 34) held that where joint minutes reflect the agreement of experts that a third party’s injuries are serious, and in the absence of a timeous repudiation based on good reasons, no matter can be referred to the Health Professions Council of South Africa ('HPCSA') for an issue that is common cause This matter is however in my view further distinguishable in that the defendant had filed a special plea in which it rejected the injuries as serious as contemplated in section 17(1A) of the regulations to the Road Accident Fund Act 56 of 1997 and at that stage gave notice of its repudiation of the general damages claim. Furthermore, the pre-trial minutes relect that the plaintiff was again notified of the repudation on 10 June 2020. Therefore, I am of the view that the issue of whether the plaintiff is entitled to general damages should be postponed sine die for a determination by the HPCSA.

 

Loss of earnings

 

[5]        The plaintiff was at the time of the motor vehicle collision employed by the Department of Education as a grade 1 teacher at Jongimishini Primary School earning R 9000.00 per month. She had been in the employ of the Department of Education since 2004, and received her full income whilst on leave following the motor vehicle collision. Her qualifications include a diploma in education and an advanced certificate in education from UNISA, obtained in 2004 and 2009 respectively. Upon her return to work seven months' later (this period included her maternity leave) she resumed her pre-accident duties. However, she experienced difficulty writing on the board and standing for prolonged periods after the accident and also takes at least two days' sick leave per month.

[6]        The plaintiff filed Rule 36(9) reports from the following experts: occupational therapist Dr Ndzungu, neurosurgeon Dr Moja, clinical psychologist Dr Maye, counselling psychologist Dr Homberg and industrial psychologist Dr Botha.

[7]        The defendant filed one expert report, that of clinical psychologist Dr T.C Hlaheng-Letshufi, based on an assessment of the plaintiff in 2018. The report confirms that the plaintiff still suffers pain on the right hand side of her body and suffered pain while caring for her newborn baby as she was also on crutches at the time. Since the accident she was unable to stand for long periods while writing on the chalkboard and has become 'slow'. The expert noted that there was no neurological damage but the plaintiff showed signs of post-traumatic stress disorder (PTSD), and she has prominent anxiety and mild depression. She recommended that the plaintiff should be compensated for the emotional trauma she suffered and that she would benefit from psychotherapy to address her apparent emotional distress.

 

[8]        The neurosurgeon for the plaintiff, Dr Moja, confirmed that the plaintiff sustained a head injury and also suffered pregnancy complications (abruptio placentae) as a result of the motor vehicle accident. Her baby was at the time he conducted the assessment a year and 5 months old and apparently healthy. The plaintiff had a prolonged 24-hour episode of post-traumatic amnesia post-accident. She has no recollection of the accident and her brother told her about the accident. Dr Moja diagnosed her with a moderate to severe diffuse traumatic brain injury with a focal component as well as a 42% WPI (whole person impairment). Her post-injury status recorded by Dr Moja is that she has headaches (about four times per week), memory loss, loss of smell and taste for food, right sided weakness. She is easily forgetful, misplaces her belongings and finds it difficult to concentrate. Her memory loss has an impact on her performance at work and her school principal has complained about her performance. She also complains of residual right-sided weaknesses in her arm and leg. Dr Moja concludes that in addition to moderate to severe traumatic brain injury she is suffering from severe neurocognitive and neuropsychological defects.

[9]        Dr L le Roux, the specialist physician, also diagnosed her with major neurocognitive disorder due to possible head injury as well as Major Depressive Disorder.

[10]      As summarised in Dr Botha's report, the clinical and counselling psychologists indicate that the plaintiff's overall neuropsychological components were very low, and her neurocognition index was also very low, denoting neurocognitive impairment and deficit.  They conclude that she suffered a mild traumatic brain injury in the accident, marked by trauma to the cranium, altered consciousness as well as confusion and post-traumatic amnesia. They state that her "below average results and qEEG outside normal limits evidenced significantly diminished capacity and functioning compared to her average pre-accident capability." They consider her to have suffered severe long term mental or severe long-term behavioural disturbance or disorder. This is based on the low probability that her condition will significantly improve. They conclude that "in light of the injuries and neuropsychiatric sequelae identified in the report Ms Mpama's prospects of advancing herself along career paths possible prior to the accident are poor. Further, given her problems described in this report, we conclude that continued retention by her employer entails a significant degree of sympathetic accommodation. As such, her future financial security has been compromised as such sympathetic accommodation is not guaranteed. We recommend that loss of potential future income resulting from the accident be calculated by a competent party."

[11]      The occupational therapist, Dr Ndzungu, assessed her as having severe depression based on a score of 32/40 on Beck's depression inventory. Dr Ndzungu notes that the accident has left her with physical, cognitive and functional limitations which prevent her from participating normally in her pre-accident occupational role as a grade one teacher. She struggles to perform some of her work duties and this will have a significant detrimental negative impact on her career advancement opportunities and career pathing. During the occupational therapy assessment, it was noted that the plaintiff presented with limitations with tasks requiring lifting and carrying of heavy objects, performance of dynamic cultural movement, prolonged standing and walking, elevated arm function activity as well as prolonged sitting when marking assignments or tests. Her duties aggravate her symptoms and she is no longer able to participate in extramural activities. The expert concludes that a vocational prospects have been negatively affected in that her vocational prospects have been curtailed and will most likely continue to remain limited into the future. She still experience symptoms and restrictions to performance which makes it difficult for her to enjoy her job fully and be competent. Her presenting emotional challenges and cognitive impairment has a negative impact on her interpersonal relations with her colleagues and learners.  The report noted that she relies on her sympathetic principal to retain her job as she is unable to fulfil some of her duties as an educator. Dr Ndzungu indicates that were she to engage as a job seeker as an educator in the open market, she would be suited to light and sedentary work given her physical limitations. However, she would have difficulty maintaining her employment without reasonable accommodation of her needs, but the fact that she requires reasonable accommodation will limit her job opportunities. The expert concludes that the plaintiff will always be prejudiced and limited in choice of employer, type of work and work environment and these will lead to restrictions of job freedom, promotion prospects and career progression. The occupational therapist also formed the view that should her neurocognitive and neurophysical  challenges persist, her injury will in all likelihood result in early retirement.

[12]      The medico-legal report of L. Holmberg, the counselling psychologist states that she has suffered neuro-cognitive fallout, particularly in the domains of perceptual reasoning indices and working memory. He indicates that she most likely suffered a severe traumatic brain injury ('TBI').

[13]      Dr Botha notes in considering her earnings postulations prior to the accident that the plaintiff was in the achievement phase of her career and would most likely have had the continued capacity to continue in her chosen career path as an Educator in the Department of Education. In addition, she likely had intact capacity for promotional opportunities to Head of Department within the Department of Education. Having regard to the accident, Dr Botha considered the expert opinions of Dr Moja and other experts (as set out above) regarding her neurocognitive and neurophysical deficits, that she has suffered a mild TBI, and her work capacity has been adversely and significantly negatively affected by the collision.

[14]      The actuarial report of Munro actuaries, based on the medico-legal opinions that the plaintiff is not expected to reach the suggested pre-accident career potential and might suffer early retirement and other losses, determined her future loss of earnings (excluding contingencies), to be R 578 300.00. This is based on the assumption that her salary would have increased by 1% per year up to retirement age. No contingencies were taken into account in making this calculation. Plaintiff's counsel submitted that the 'normal' pre-accident contingency of 15% would not be fair to the plaintiff and urged me to apply a contingency of 10% pre-accident and 50% post-accident. In support he submitted that the plaintiff was in the process of building her career, and could in all likelihood have been promoted to head of her department. She had always been consistent in her academic achievement and had never failed any grades at school, and had thereafter attained two diplomas. The 50% post accident contingency would more than adequately deal with the consequences that have already manifested and which present limitations to her career advancement no matter how well she performs her duties. The plaintiff received her full salary whilst on leave following the accident and hence past loss of earnings are not an issue. I am in agreement with counsel that the following calculations are appropriate in this instance, and that the plaintiff is entitled to the sum reflected as her total loss of earnings:

Pre-morbid earnings Less contingency deduction (10%)	6 387 900   638790	Total pre-morbid loss :   5 749 110
Post morbid earnings Less contingency deduction (50%)	5 809 600   2 904 800	Total post morbid loss:   2 904 800
Total loss of future earnings		2 844 310

 

Order

[15]      In the result, I make the following order:

1.         The defendant concedes 100% liability on the merits in favour of the plaintiff.

2.         The defendant is to pay to the plaintiff the amount of R 2 844 310  (two million eight hundred and forty four thousand three hundred and ten rand) in respect of the plaintiff's loss of earning capacity. This amount is payable on or   before 31 July 2020 and into the following bank account of the plaintiff's   attorneys:

ACCOUNT HOLDER                      :           NGQUMISHE M ATTORNEYS

ACCOUNT NUMBER                     :           [….]

BRANCH CODE                             :           251445

BANK NAME                                  :           FIRST NATIONAL BANK

TYPE OF ACCOUNT                      :           TRUST ACCOUNT

REF NO                                           :           NMA/RAF/MPAMA

3.         The defendant will not be liable for interest on the abovementioned amount save in the event of failing to pay on the due date, in which event the       defendant will be liable to pay interest on the outstanding amount at a rate of    10,25% per annum.

4.         The defendant is ordered to pay the taxed or agreed party and party costs of   the plaintiff on a High Court scale, including the costs of obtaining medical reports of the following expert witnesses of the plaintiff: Dr Ndzungu and Associates, Dr Moya, Dr Maye, Dr Christelle Botha and Munro Actuaries.

5.         In the event the plaintiff’s costs are not agreed the plaintiff shall serve a notice of taxation upon the defendant or its attorneys of record.

6.         The determination of general damages is postponed sine die.

7.         The issue of future medical expenses is postponed sine die.

 

U. BHOOLA

Acting Judge of the High Court of South Africa

Gauteng Division, Pretoria

                                                                                   

Date of hearing : 12 June 2020

Date of handing down of judgment electronically : 26 June 2020.

 

Appearances:

 

For the Plaintiff: Adv S. Nomandondo

 

Instructed by : Ngqumshe Attorneys

 

For the Defendant : no appearance

 

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