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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

MPUMALNGA DIVISION MIDDLEBURG COURT

(LOCAL DIVISION)

 

Case No: 3332/21

(1)       REPORTABLE:  NO

(2)       OF INTEREST TO OTHER JUDGES: NO

 

In the matter between:

 

DALUXOLO NKOSIYOMUSA KHUMALO                                                        Plaintiff

 

And

 

THE ROAD ACCIDENT FUND                                                                       Defendant

 

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 06 MAY 2024.

JUDGMENT

MSIBI AJ

 

INTRODUCTION:

 

[1]        The Plaintiff, an adult male residing at no 1[...] R[...] Middelburg, Mpumalanga, has instituted an action for damages against the defendant for damages suffered as a result of the injuries that he sustained in a motor vehicle collision that occurred on 24 July 2015. At the time of the collision the plaintiff was a driver of a minibus taxi. The other insured motor vehicle was never identified. The action is defended by the Road Accident Fund (RAF).

 

THE MERITS

 

[2]        At the start of the trial I was informed that the merits have become settled in that the defendant offered a concession on merits 80 % in favour of the plaintiff and the plaintiff accepted the offer.

 

[3]     The only issue for determination by this court is therefore the quantum of past and future loss of earnings and earning capacity. The plaintiff called all its expert witnesses who testified during the trial. The defendant did not lead any evidence, nor submit expert reports.

 

[4]        In the particulars of claim at para 4 to 6 the plaintiff alleged as follows:

 

“4.        On or about the 24^th of July 2020 at or near Philander and Calidan Street Nasaret Middeburg, the plaintiff was the driver of White Nissan NV350 with registration letters J[...] when the driver of a Toyota Fortuner with registration letters and numbers J[...] whose further particulars are unknown to the plaintiff failed to stop his motor vehicle at the stop street and collided with the motor vehicle in which the plaintiff was driver and then causing the plaintiff’s motor vehicle to overturn.

 

5.         As a result of the accident Plaintiff sustained the following bodily injuries:

 

5.1       Right thumb degloving injury

 

5.2       Fractured right 1^st phalynx

 

6.         The accident was caused by the sole negligence of the insured driver of the Toyota Fortuner bearing registration letters and number J[...] who was negligent in one or all of the following respect, in that;

 

                                   6.1       He failed to keep s proper look out.

 

                                   6.2       He failed to keep the insured vehicle under proper control.

 

                                   6.3       He failed to apply brakes timeously or at all.

 

6.4       He failed to ensure that the vehicle was in proper road worthy condition.

 

6.5      He failed to exercise a special duty of care required to motorists who are using the road or ought to be aware of the presence of other road users in the vicinity.

 

6.6       He failed to avoid the collision whereby the exercise of due reasonable care and skill was necessary, and he could and should have done so.

 

6.7      He drove at an excessive speed under the prevailing circumstances of the case.

 

As a result of the collision the plaintiff suffered damages in the amount of R3000 000. 00 (three million rands)

 

                       7.1       GENERAL DAMAGES: R800, 000.00

 

                       7.2      PAST AND FUTURE LOSS OF EARNINGS: R2000, 000.00

 

                       7.3       FUTURE MEDICAL EXPENSES: 200, 000. 00

                                               TOTAL: R3000 000.00”

 

[5]       In its plea, the defendant essentially denied the allegations and put the plaintiff to the proof thereof.

 

[6]       It was common cause that at the time of the collision, the plaintiff who possessed no significant or specific skill, was employed as a taxi driver, as will be detailed below in this judgment. The issue of general damages was withdrawn from these proceedings by the plaintiff due to the submission by the defendant that the plaintiff’s injuries do not qualify as serious injuries. The defendant is still to furnish an undertaking in terms of s 17 (4) (a) of the Road Accident Fund Act 56 of 1996. Based on the agreement between the parties the only issue for determination by this court is therefore the quantum of past and future loss of earnings and earning capacity.

 

          THE EVIDENCE OF THE ORTHOPAEDIC SURGEON

 

[7]        Dr T Kumbirai assessed and examined the plaintiff and filed a report on 21 July 2022. The report and hospital records showed that the plaintiff was admitted to the Middelburg Hospital and on the date of the accident being 24 July 2020. The RAF 1 form that was completed by Dr T.C. Mothousi indicated that the plaintiff sustained degloving injury dorsum right thumb with a 12 cm x 4 cm scar, ruptured extensor pollicis longus (EPL) tendon right thumb and dislocation MP joint thumb. On the same day the plaintiff was examined and treated for debridement right thumb wound management, pain management and anti-sepsis management. The expert noted that the plaintiff went back to work as a taxi driver after the accident. He however experienced problems when changing tyres because of the weakness of the right thumb. The plaintiff also complained of pain in his right thumb, which was exacerbated by lifting of heavy objects and heavy work, weakness on the right thumb with inability to extend the thumb thus decreasing his ability to perform certain daily activities. The expert opines that the plaintiff’s Whole Person Impairment is 4%.

 

[8]        The expert opines that the plaintiff will benefit from open reduction, internal fixation and soft tissue and ligamentous repair of the MP joint of the thumb to reduce dislocation and improve the function of the right thumb. The expert opines that the plaintiff will have problems in engaging normally in activities which require lifting of heavy weights. With regard to future treatment the Doctor opines that the plaintiff will need to consult various medical practitioners intermittently, namely, his general practitioner, orthopaedic surgeon and physiotherapist. He will need to purchase prescription and non-steroidal anti-inflammatory drugs for pain management at an estimated cost of R3 000.00 for the rest of his life. For the open reduction and internal fixation MP joint procedure the cost will be R80 000.00. After having recuperated for a period of ten weeks the removal of the implants in his right thumb will cost R40 000.00. A period of 4 weeks’ post-surgery for recuperation is considered reasonable.

 

[9]     The narrative test as indicated in the RAF4 form indicates that the plaintiff has sustained serious long term impairment or loss of bodily function.

 

           EVIDENCE OF THE OCCUPATIONAL THERAPIST

 

[10]      The occupational therapist Dr T Sibiya examined the plaintiff on 22 July 2022 and prepared the medico-legal report o 3 May 2023. The purpose of the evaluation was to determine the extent of the injuries and their effect on his occupational performance areas, leisure and daily living. Further to identify the need for specialised equipment, home adaptions and determine his ability to return to work. The expert noted that the plaintiff was complaining about his right hand and right thumb. He walked with a normal gait, he maintains symmetrical posture, he has a normal muscle tone but he has no active movement on the interphalangeal joint of the right thumb and has functional range of motion on the neck, trunk, left upper limb and lower limbs. He had weakness of the right upper limb.

 

[11]      The expert noted that the plaintiff completed grade 12. At the time of the accident he was employed by M P Sibanyoni as a taxi driver operating daily from Monday to Saturday from 05h00 to 20h00. His occupation falls within medium physical strength, but after the accident his physical capacity can execute light physical strength. Post-accident the plaintiff returned to work after 2 months and he was not paid while recuperating. In 2022 he secured another employment as a taxi driver. The plaintiff stands to benefit from the use a steering wheel turner and he should not work more than eight hours a day. The expert opines that the plaintiff will benefit from sixteen sessions of occupational therapy, inclusive of surgery intervention.

 

           THE INDUSTRIAL PSYCHOLOGIST

 

[12]      Mr Nyahwema assessed and examined the plaintiff on 22 July 2022 and prepared the medic-legal report on 9 May 2023. The plaintiff’s highest standard of education was grade 12. Before the accident he worked as a general worker at Pitty Company in 2019, earning R8 000 per month. The contract ended in 2020. He thereafter worked for Mr Sibanyoni as taxi driver earning R6 000, 00 per month. After the accident he never returned to his previous employer.  Two months after the accident, he secured another employment as a taxi driver for Mr Piet Sibanyoni where he is currently earning R7 000.00. Since the plaintiff started driving at an early age of 24 years, it is possible that he would have reached the peak of his career by the age of 45-50; where he would acquire a taxi of his own. He would stand to earn between R156 000.00 to R435 000.00 per annum.

 

[13]     The expert notes that the plaintiff’s accident related ailments, namely, right hand pain worsened by cold weather, unable to lift heavy objects and a poor right hand grip; may possibly affect his employability and functionality in the open labour market. As such provision should be made for future medical expenses.

 

          THE PLAINTIFF’S LOSS OF EARNINGS AND EARNING CAPACITY

 

[14]      Based on the above factual disposition, as well as the views expressed by the experts; the pertinent question is what award will be fair and adequate compensation for the plaintiff in respect of both his loss of earnings and earning capacity.

 

           APPLICABLE LEGAL PRINCIPLES

 

 [15]     It is trite that in the assessment of these kinds of damages, which cannot be assessed with any amount of mathematical accuracy; the court has a wide discretion[1]. The principles applicable to calculation of loss of earnings and earning capacity were set out in Southern Insurance Association Ltd v Bailey NO[2], Nicholas JA stated as follows:

 

“In a case where the court has before it material on which an actuarial calculation can usefully be made, I do not think that the first approach offers any advantage over the second. On the contrary while the results of an actuarial computation may be more than “informed guess”, it has the advantage of an attempt to ascertain the value of what was lost on a logical basis; whereas the trial judge’s “gut feeling” (to use the words of appellant’s counsel) as to what is fair and reasonable is nothing more than a blind guess (cf Goldie v City Council of Johannesburg 1948(2) SA 913 (W) at 920)”

 

[16]      For the plaintiff to succeed in his claim for future loss of earning capacity, the plaintiff must show that the injuries he sustained caused a diminution of his estate. This aspect was well articulated in the oft quoted judgment of Rudman v Road Accident Fund[3] where a claim by the plaintiff for loss of capacity was dismissed on the ground that although the appellant has proved disabilities for loss of earning capacities, which potentially at any rate could rise to a reduction of his earning capacity, he had failed to prove that this has resulted in patrimonial loss since the loss and earning capacity he had suffered was a loss for the company and not his private estate.

 

[17]      In Van Heerden v Road Accident Fund[4] Straus AJ said the following:

 

“Now turning to the law in general on a claim for loss of future income. It is so that the mere fact of physical disability does not necessarily reduce the estate or patrimony of the injured person. Put differently, it does not follow from proof or physical injury, which impaired the ability to earn an income, that there was in fact a diminution of earnings”

 

[18]      In the present matter, the plaintiff’s loss of earnings since the collision and his future loss of earnings capacity have been calculated by Dr G A Whittaker, a consulting actuary of the firm Aglorithm on 11 June 2023. The basis of the calculation and the assumptions made, which were not counterattacked included the following. The minutes of the Industrial Psychologist Mr C Nyahwema; that the plaintiff was employed as taxi driver earning R6 000.00. The calculation took into account that after being unemployed for two months he secured another employment where he is earning R7 000.00 per month. The plaintiff’s date of consultation with the industrial psychologist is 22 July 2022 and the report is dated 9 May 2023. The plaintiff did not disclose the same employment history to the actuary Dr G.A Whittaker. Before Dr Whittaker the plaintiff stated that his pre accident earnings were R8 000.00 per month. To explain the discrepancy, the plaintiff submitted a sworn affidavit dated 17 May 2023. The latest pre accident earnings were increased by R2 000.00 from the earnings stated before the Industrial Psychologist in 2022.

  

[19]      The court will keep in mind that it is highly improbable for the plaintiff to give a wrong history of his pre-accident earning in 2022, which was the earliest information after the accident.  Only a few days after the Industrial Psychologist report, the plaintiff amended his past earnings before the actuary. The amendments were not served on the Industrial Psychologist for him to amend his report accordingly.  

 

[20]      It was correctly submitted by Mr Mhlanga on behalf of the defendant that there is no evidence on record which lays the basis for the conclusion by the experts that the plaintiff will not reach his potential target of being a taxi owner by the age of 45 to 50 years of age. This conclusion as been reached despite the fact that the plaintiff is still employed in the same sector as a taxi driver.

 

[21]      In Nonyane v Road Accident Fund[5] at para 6, Legodi J warned against the practice and perception that courts capitulate to every evidence of an expert witness, as being wrong, and to be discouraged. Furthermore, the responsibility for evaluation of the reliability of facts and evidence lies in the domain of the courts, contrary to the belief of those participating in the court proceedings.

 

[22]      Based on the afore-mentioned factors, it is clear that the plaintiff ‘s pre-accident earning capacity has been adjusted a few days before consultation with the actuary. In the light of the conflicting information pertaining to his pre accident earnings, I will place reliance on his first version which is more likely to be true as opposed to the second version furnished to the Actuary. In my view there is no diminished or past loss of earning except for the actual loss of R12 000 00 that he did not earn for two months.

 

[23]      I am not satisfied that the plaintiff’s future earning capacity has been compromised, secondly that his patrimony has been diminished. During cross examination the Industrial Psychologist could not dispute the fact that as a driver the plaintiff is using his uninured left hand to change gears.  According to the Occupational Therapist the plaintiff future plan is to run a taxi business. There is no evidence to the effect that the plaintiff will not reach his career ceiling of being a taxi owner and driver in the non-corporate sector. If the plaintiff is able to drive a taxi with better post-accident earnings, it goes without saying that his future earing capacity is not compromised. The plaintiff has failed to show that the injuries that he sustained have caused a diminution of his estate.

 

[24]      The Industrial Psychologist’s calculations of loss of earning capacity has no basis or corroboration, in the form of payslips or bank statements. It was submitted on behalf of the defendant that the fact that merits have been settled 80% in favour of the plaintiff mean that the defendant has admitted liability for damages and not the alleged sequelae thereof.

 

[25]   The experts recommended future medical treatment for the plaintiff and same can be funded by the defendant. The Occupational Therapist recommended a steering wheel turner to alleviate physical strain on his right hand while driving.

 

[26]    In light of the above, the plaintiff has only succeeded in proving his past loss of earnings for a period of two months, which is supported by records of his admission in hospital as follows:

 

Past loss                                           : R12 000.00

 

Value of income uninjured             : R12 000.00 

 

            Value of income injured                  : R0                                                  

 

            Net Past loss                                 : R12 000.00                                                        

        

[27]      I am therefore satisfied that the plaintiff’s pre and post-morbid scenarios are the same.

 

[28]      In the result I make the following order:

 

1.            The defendant shall pay the plaintiff a sum of R12 000.00 (Twelve thousand rands) as compensation for his past loss of earnings.

 

2.            The defendant shall furnish the plaintiff with an undertaking in terms of section 17 (4) (a) of the Act, for the costs of the future accommodation of the plaintiff in a hospital or nursing home or treatment of or rendering of a service to him or supplying of goods to him arising out of the injuries sustained by him in the motor-vehicle collision which occurred on 24/07/2020; after such costs have been incurred and upon proof thereof.

 

3.            The defendant is ordered to pay costs.

 

 

S MSIBI AJ

ACTING JUDGE OF THE HIGH COURT

 MPUMALANGA DIVISION

MIDDLEBURG

 

APPEARANCES

Counsel for the Applicant:	Adv. S Dlali
Instructed by:	Mashishi Attorneys
Counsel for the Respondent:	Mr S B Mhlanga
Instructed by:	State Attorney
Date of Judgment:	06 May 2024

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