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IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

 

CASE NO: 668/2023

(1)    REPORTABLE:  NO

(2)    OF INTEREST TO OTHER JUDGES:  NO

(3)    REVISED

DATE: 19/09/2024

SIGNATURE

  

In the matter between:

COLLEN SIFISO MAMBA                                                       PLAINTIFF

 

And

 

ROAD ACCIDENT FUND                                                         DEFENDANT

JUDGMENT

 

CORAM: LANGA J

Introduction and Concise Facts

[1]      The Plaintiff instituted this action for the recovery of delictual damages in terms of the Road Accident Fund Act 56 of 1996, (“the Act”), as a result of the personal injuries sustained during a motor vehicle collision which occurred on 4 July 2020. The Plaintiff was a pedestrian and was allegedly knocked down by a motor vehicle while he was running or walking. The Defendant filed a notice to defend as well as the plea. The Defendant however chose not to file any expert reports.

 

[2]      Both the merits and quantum (loss of earnings, general damages, past medical expenses and future medical expenses) are in dispute and up for determination. The determination of general damages is however by agreement between the parties postponed sine die. When the trial commenced, the Plaintiff made an application in terms of Rule 38(2) of the Uniform Rules for the admission of the reports of certain experts as evidence. The Defendant’s counsel indicated that it had no objection to the application and the application was accordingly granted. I will for convenience deal with the merits first.

 

Merits

[3]      On the merits, the Plaintiff testified viva voce and stated that on 4 July 2020 at around 17h00 he was running/jogging on the pedestrian’s sidewalk when an oncoming VW Polo motor vehicle left the road and knocked him down.  As result of that collision, he fell into a ditch. He said the accident was a so-called “hit and run” as the vehicle did not stop after colliding with him. He was assisted by people at the scene who called for an ambulance. Although it took long, the ambulance however eventually arrived, and he was ferried to hospital after the paramedics had checked him.

 

[4]      He stated further that although some of the people who helped tried to follow the vehicle, they however did not manage to bring him back to the scene. He therefore does not know who the driver of the VW polo is.  Regarding the injuries he testified that he sustained a fracture of the right thigh and leg and was hospitalised for about a month. He further stated that he only went back to his workplace about a year after the accident and was told that he could no longer work as he was unfit to continue working.

 

[5]      Under cross examination the Plaintiff confirmed that he was running when he was hit by this motor vehicle which came from the front. I pause here to state that this evidence that he was running if at odds with his particulars of claim and section 19(f) affidavit where it is alleged that he was walking when he was hit by the car. I will however revert to this aspect later in the judgment. He further confirmed under cross examination that he was earning about R8000 per month when the accident took place. 

 

[6]      On the quantum the Plaintiff called Dr Johanna Hendrina Buitendach, the Industrial Psychologist who also gave viva voce evidence. This witness testified that she assessed the Plaintiff and made a report which was admitted as evidence. I will revert to her evidence in the ensuing paragraphs when dealing with the quantum. After her evidence the Plaintiff closed his case whereafter the Defendant also closed its case without calling any witnesses.

 

The Plaintiff’s submissions

[7]      Acknowledging that the Plaintiff gave differing testimonies regarding what he was doing when the accident happened, the Plaintiff’s counsel argued that whether he was walking or running is immaterial, and that the only important fact is that he was a pedestrian. Even though it is common cause as alleged in the Particulars of claim that the Plaintiff was at all material times a pedestrian, it cannot be correct that what he was doing at the time of the collision is immaterial. What he was doing goes to the heart of the issue of liability and it is therefore important and relevant to the determination of liability.

 

[8]      Further, the Plaintiff ostensibly also relies on Rule 18 (4) of the Uniform Rules of Court in the argument that where a party fails to prove the fact relied on at the trial, he may nevertheless succeed on his claim or defence if that fact is not a material fact but only evidence of a material facts. It is not clear from this argument what the Plaintiff’s point is. What is not unclear is that the Plaintiff alleged in the particulars of claim that he was walking when he was hit by the motor vehicle.  

 

[9]      The Plaintiff’s counsel further argued that in terms of the rule against self-corroboration, a witness’s previous consistent statement is not relevant and does not add any value to his evidence. I must pause to say that it is not clear what the relevance of this argument is either. Lastly, the Plaintiff’s counsel argued that as the Defendant did not lead any evidence, no contributory negligence was established on the part of the Plaintiff.

 

The Defendant’s submissions

[10]    The Defendant argued that Plaintiff’s testimony was contradictory and that the cautionary rules of evidence must be applied when admitting such evidence. The Defendant pointed out that the Plaintiff’s evidence contradicts his particulars of claim as well as his Section 19(f) statement in a material respect in that while in the particulars of claim he alleges that he was walking at the time of collision, during his testimony the Plaintiff denied that he was walking at the time of the accident. He testified that he was at all times running and that the allegations in his particulars of claim and his Section 19(f) statement are incorrect. The Defendant submitted that the Plaintiff’s testimony is not clear and satisfactory in that his own versions do not corroborate each other, and he is therefore not a credible witness.

 

[11]    The Defendant further argued that as the Plaintiff testified that he did not see the VW Polo approaching until it bumped him whereas it came from the oncoming lane, he was therefore negligent as he failed to keep a proper lookout. If he was vigilant and had kept a proper look out, he would have noticed the vehicle. The Defendant further contended that should the court find that the Defendant is liable, it must find that the Plaintiffs negligence contributed to the accident and accordingly apportion the damages in terms of the Apportionment of Damages Act 34 of 1956.

 

Discussion

[12]    As a starting point, I must point out that there is indeed a material discrepancy between the Plaintiff’s pleadings, the section 19(f) affidavit and the viva voce evidence regarding what the Plaintiff was doing when the motor vehicle allegedly knocked him over. The Plaintiff’s contention that it is not important whether he was running or walking is wrong. Even though it is common cause as alleged in the Particulars of claim that the Plaintiff was at all material times a pedestrian, what he was doing cannot be said to be immaterial. Whether he was running or walking is still important for the determination of liability. The fact that a person was a pedestrian does not mean that he was not at fault, and I will illustrate the point shortly.

 

[13]    Apart from the particulars of claim and the section 19(f) affidavit, it is further repeated in the Pre-Trial Minutes by the Plaintiff at inter alia paragraphs 4.1(a) and 14.3, that the Plaintiff was walking outside the road when the collision took place. It is further re-stated in the Plaintiff’s statement in terms of Rule 37(9)(a). It is clear therefore that this version could not have been a mistake. (My emphasis)

 

[14] In addition to the contradiction between the pleadings, section 19(f) affidavit, the Rule 37(9)(a) statement and the viva voce evidence, there is a further version from the Plaintiff’s Occupational Therapist. According to her report at page 5 para 2.1, she noted the following: At the time of accident, he was – Pedestrian, crossing the road. This version emerges from the report which was, at the instance of the Plaintiff, admitted to evidence in terms of Rule 38(2). This clearly contradicts the Plaintiff’s version that he was jogging or walking on the side of the road when the collision took place. It must, however, be noted that at page 19 para 12 of the report, the Occupational Therapist makes a contradictory note and states that the Plaintiff was walking when the incident took place. This also contradicts the Plaintiff’s viva voce evidence that he was jogging. (my emphasis).

 

[15]    As I have indicated in the preceding paragraphs, the submissions by the Plaintiff’s counsel that it is immaterial whether the Plaintiff was walking or running is wrong and misconceived. It is clear that for the determination of liability this aspect is very relevant and crucial. If the court is to find, as submitted by the Plaintiff’s counsel, that the Defendant is 100% liable for the damages suffered by the Plaintiff, the court can only do so on the basis of credible evidence to that effect. Whether the Plaintiff was running, walking or crossing the road is therefore relevant.

 

[16]    In the light of the above anomalies in the Plaintiff’s version, it cannot be said that the Plaintiff did not contribute to the collision. One cannot ignore the fact that the Plaintiff’s evidence is materially contradictory. The argument by the Plaintiff that the previous statements by the Plaintiff are not relevant does not make any sense and is clearly incorrect. The pleadings cannot be categorised as previous statement. The Plaintiff’s case is anchored on the pleadings. What is alleged in the pleadings is obviously relevant and material and constitutes the basis for the Plaintiff’s case.

 

[17]    The fact that the Plaintiff was a pedestrian does not mean that he was not at fault. Taking into account the evidence placed before court by the Plaintiff, and despite the Plaintiff’s insistence that the insured driver is the sole cause of the accident, I am not persuaded that the Defendant must be held 100% liable for the damages incurred. The Plaintiff has not discharged the burden of proof in this respect.

 

[18]    I accordingly find that there was contributory negligence on the part of the Plaintiff. The only question that remains to be decided is the extent if his negligence. Based on the Occupational Therapist’s report as referred to in the preceding paragraphs, there is a high probability that the Plaintiff was 50% negligent. Despite this, I am nevertheless of the view that a determination that the Plaintiff was 20% negligent would not be out of kilter with the evidence. I therefore find that the Defendant should be held liable for 80% of the Plaintiff’s proven damages.   

 

Discussion re Determination of Quantum

[19]    It is trite that earning capacity constitutes an asset in a person’s patrimonial estate. However, since physical disability does not always reduce the patrimony of an injured person, the Plaintiff must prove that the reduction of the earning capacity will result in actual loss of income.     It is settled law that in order to claim loss of earnings or earning capacity, a claimant must prove the physical disabilities resulting in the loss of earnings or earning capacity and also actual patrimonial loss. Rudman v Road Accident Fund 2003 SCA 234. In her viva voce testimony, the Industrial Psychologist Professor J Buitendach in essence concluded that the collision and resultant injuries have impacted the Plaintiff’s earning capacity.  She basically relied on the information received from the Plaintiff and the Orthopaedic Surgeon regarding the nature of the injuries sustained by the Plaintiff. The Plaintiff however did not confirm this during his testimony.

 

[20]    It is however not disputed that the Plaintiff was previously employed as a security officer and that he left his employment as he couldn’t cope with the work demands of his employment. His earnings before the accident were also confirmed. The certificate of service and medical assessments was confirmed.

 

[21]    As stated above, the Plaintiff further relies on the evidence of the Orthopaedic Surgeon, Dr HL Moloto, the Occupational Therapist, LK Papo and the Actuary Mr W Loots. The reports of these experts including that of Professor Buitendach, together with their affidavits, were admitted as evidence in terms the provisions of Rule 38(2) of the Uniform Rules. I will hereunder deal succinctly with their testimonies.

 

The Orthopaedic Surgeon Dr Moloto

[22]    In a nutshell in his report Dr Moloto, the Orthopaedic Surgeon, confirmed the right tibia-fibula fracture and surgical reduction of the right leg. He also added that the right leg has an abnormal movement of the shaft indicative of non-union of the fracture. This diagnosis was also confirmed by the X-ray report. He stated that although the injury affected his ability to work, this may however be restored by surgical treatment of the non-union of the right leg. He added that with treatment the Plaintiff will have a good prognosis.  

 

Occupational Therapist, LK Papo

[23]    After conducting the physical capacity evaluation assessment the Occupational Therapist, LK Papo, opined that the Plaintiff does not meet the physical requirements for an occupation which falls within full ranges of light medium heavy and heavy activities due to the reported right leg pain. In her view the accident has left the Plaintiff with a permanent physical disability as a result of which he can no longer fully meet the physical demands of his current job as a security officer.  She stated further that due to his physical capacity and non-union of the fracture, he is suited for sedentary type of work which does not involve heavy lifting.   

 

Industrial Psychologist - Professor J Buitendach

[24]    The industrial psychologist, Professor Buitendach, reports that according to his salary slips as a security officer, the Plaintiff was the earning about R8287,55 per month which equates to R99 450.60 per annum. She opined that the earnings would have increased to R104 000 per annum in 2023. Thereafter his earnings would likely have increased to R206 000 per annum in 2031 when he reached 45 years of age. She opined further that when he turns 39 in 2025, he might need a sympathetic employment with earnings ranging around R24,700 per annum which falls within the lower quartile for unskilled workers in the same capacity as a security officer. She is of the opinion the plaintiff is likely to be limited in terms of employment prospects and will need an accommodative employer where he is allowed frequent rest breaks. In the light of the evidence of Professor Buitendach, and in the absence of evidence to the contrary, it is fair to conclude that the Plaintiff is no longer fit to be employed as a security guard.  Therefore, the likely possibility of him finding a sympathetic employment is slim.

 

Actuary – Wim Loots

[25]    The Plaintiff’s past and future loss of income has been actuarially calculated without the application of contingencies which the actuary deferred to the court. However, the basis of the said calculations, which are elaborated upon in the paragraphs which follow, appear to accord generally with the facts and the probabilities in the matter.  The actuary Wim Loots calculated the pre-accident and post-accident loss of earnings on the basis of the report by the Industrial Psychologist Dr Buitendach. He calculated that had the accident not occurred, the past and future earnings would be R447 622 and R3 465 688, respectively. Post-morbid the past and future earnings were quantified as R0 00 and R456 571 respectively.

 

[26]    It is assumed, on the basis of the reports by the Plaintiff’s Orthopaedic Surgeon, his Occupational Therapist and the Industrial Psychologist, that had the accident not occurred, the Plaintiff would have been able to progress from the security officer earning R8287.55 per month or R99 444 per annum, (median quartile for semi unskilled workers), to  R104 000 per annum in the same position at 37 years of age, (Upper quartile for unskilled workers).  At 45 years he would progress to earn R206 000 per annum which falls in the upper quartile for semi-skilled workers.

 

[27]    Now that the accident has happened, it is assumed that the Plaintiff at present earns or would be able to earn R0 00 per month and would, with sympathetic employment, be able to increase gradually and reach his career ceiling at age 39 years old, earning earn R24 7000 annum which equates to about R2 058 per month. 

 

[28]    In the case of Road Accident Fund v Guedes 2006 (5) SA 583 (SCA), at para [9], the court referred with approval to The Quantum Yearbook, by the learned author Dr R.J. Koch, under the heading ‘General Contingencies’, where it states that:

 

“…[when] assessing damages for loss of earnings or support, it is usual for a deduction to be made for general contingencies for which no explicit allowance has been made in the actuarial calculation. The deduction is the prerogative of the Court…”

 

[29]    The advantage of applying actuarial calculations to assist in this task was emphasised in the leading case of Southern Insurance v Bailey, 1984 (1) SA 98 (AD) at pages 113H-114E, where the Court stated the following:

 

“Any enquiry into damages for loss of earning capacity is of its nature speculative… All that the Court can do is to make an estimate, which is often a very rough estimate, of the present value of the loss. It has open to it two possible approaches. One is for the Judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown. The other is to try to make an assessment, by the way of mathematical calculations, on the basis of assumptions resting on the evidence… It is manifest that either approach involves guesswork to a greater or lesser extent.”

 

[30]    Concerning the contingencies, it was submitted for the Plaintiff that the normal contingency deductions of 5% and 15% should be applied in respect of the pre-morbid scenario and a contingency deduction of 50% in respect of the post-accident scenario. It is trite that the percentage of the contingency deduction depends upon a number of factors and ranges between 5% and 50%, depending upon the facts of the case.  Van der Plaats v SA Mutual Fire & General Insurance Co Ltd 1980(3) SA 105(A) 114-115A-D).  A Court has a large discretion to award what it considers right. Some of the factors that influence this discretion would be the possibility that the plaintiff may have less than a “normal” expectation of life. The amount of any discount may vary, depending upon the circumstance of the case. Southern Insurance Association v Bailey N.O, supra, at 116G-H.

 

[31] As already indicated, I am of the view that these postulations accord with the facts and the realities in the matter. It however also has to be accepted that pre-morbid he is being pitched at a higher level. One should also not lose sight of the extremely high unemployment rate in the country. My view therefore is that at the very least the contingency to be applied should at least be double the usual contingencies applied.

 

[32] Conversely, as the Plaintiff is pitched post-morbid at a very low level, my view is that no contingencies should be applied to the post-morbid projected income for the simple reason that he may very well perform and earn at a level higher than where he is pitched.

 

[33] The calculations would therefore be as follows as regards the pre-morbid loss of earnings:  The past loss would be R447 622 – R22 381,10 (5% contingency) which equals R425 240.90 whereas the future loss would be R3 465 668 – R519 583,20 (15% contingency) with a total of R2 945 834,80. Therefore the total pre-morbid loss would be R425 240 + R2 945 834 = R3 371 075.

 

[34]    On the other hand, the post-morbid projected loss with the application of 0% contingency should stay at R456 571. These calculations in turn result in the following figures in respect of the Plaintiff’s total loss of earnings: R3 371 075 (pre-morbid loss of earnings) – R456 571 (post-morbid loss of earnings) = R2 914 504.  It is to this amount that an apportionment of 20% should be applied. That means the total loss of R2 914 504 – R582 900 (20% apportionment) = R2 331 604. This is the total amount which I intend awarding to the Plaintiff as representing his loss of income.

 

[35]    Concerning the costs, the general rule is that costs follow the result. I therefore see no reason why there should be deviation from this rule in this matter. As the Plaintiff has succeeded, he is accordingly entitled to costs.

 

Order 

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

1.          The Defendant is liable for 80% of Plaintiff’s proven or agreed damages.

 

2.          The Defendant shall pay the Plaintiff an amount of R2 331 604 (Two million, Three Hundred and Thirty-One Thousand, Six Hundred and Four Rand), in full and final settlement of the Plaintiff’s claim for loss of earnings, payable into the trust account Plaintiff’s attorneys of record.

 

3.          The Defendant will not be liable for interest on the above-mentioned amount, save in the event it fails to pay the said amount within 180 (One Hundred and Eighty Days), in which event the Defendant will be liable to pay interest on the outstanding amount at 7.25% per annum.

 

4.          The Defendant is further ordered to furnish the Plaintiff with a 100% undertaking in terms of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996, for the costs of the future accommodation of the Plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to the Plaintiff arising out of the injuries sustained by the Plaintiff in the motor vehicle collision which occurred on the 4 July 2020 after such costs have been incurred and upon proof thereof.

 

5.          The Defendant is ordered to pay the Plaintiffs taxed or agreed party and party costs on the High Court scale, subject to the discretion of the taxing master, which costs will include reasonable disbursements, but will not be limited to the following:

 

5.1.         The reasonable taxed fees for consultation, including travelling and preparation for trial, qualifying and reservation fees (if any and on proof thereof) in respect of the following experts:

 

5.1.1.    Orthopaedic Surgeon Dr HL Moloto.

 

5.1.2.    Occupational Therapist – Ms LK Papo.

 

5.1.3.    Industrial Psychologist – Professor J Buitendach.

 

5.1.4.    Actuary – Mr W Loots.

 

6.         The costs of employment of counsel briefed and appearing for trial, inclusive of consultations on Scale B.

 

7.         The Defendant is ordered to pay the Plaintiff’s taxed and/or agreed party and party costs within 14 days from the date upon which the accounts are taxed by the taxing master and/or agreed between the parties.

 

8.          Should payment of the taxed costs not be affected timeously, the Plaintiff will be entitled to recover interest at the rate of 7.25% on the taxed or agreed or costs from date of allocator to date of payment.

 

9.          The issue of general damages is postponed sine die.

 

 

MBG LANGA

JUDGE OF THE HIGH COURT

 

Appearances:

For the Applicants:	Advocate P Tshavhungwe
For the Respondent:	Ms A Nefolovhodwe
Date heard:	14 June 2024
Date delivered:	19 September 2024

 

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 19 September 2024 at 14h00.

 

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