Khwela v Road Accident Fund (5191/2021) [2024] ZAGPPHC 1313 (10 December 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1313 | Noteup | LawCite sino index ## Khwela v Road Accident Fund (5191/2021) [2024] ZAGPPHC 1313 (10 December 2024) Khwela v Road Accident Fund (5191/2021) [2024] ZAGPPHC 1313 (10 December 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1313.html sino date 10 December 2024 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) CASE NO: 5191/2021 (1) REPORTABLE:  NO (2) OF INTEREST TO OTHER JUDGES:  NO (3) REVISED. DATE : 10 DECEMBER 2024 SIGNATURE In the matter between: FAITH SINDISIWE KHWELA Plaintiff and ROAD ACCIDENT FUND Defendant Summary: Evidence – expert evidence -  opinions expressed by experts must be factually based and case-specific – such opinions, despite being of value, can only provide guidance regarding issues to be decided by a court – cannot replace the task of a court to determine disputed issues.  In a claim for loss of earnings against the RAF, the plaintiff continued teaching for the 5½ years since the accident until the trial and intended still doing so.  Loss properly catered for by applying higher contingencies to same income post morbidly . ORDER - The Defendant is declared to be liable for 80% of the Plaintiff’s proven damages. The Defendant is declared to be liable for 80% of the Plaintiff’s proven damages. - The Defendant is ordered to pay the Plaintiff an amount ofR2 432 000.00(Two Million Four Hundred and Thirty Two Thousand Rand) in respect of the Plaintiff’s claim for General Damages and Loss of Earnings, payable into the Plaintiff’s attorneys of record’s trust accountwith the following details: The Defendant is ordered to pay the Plaintiff an amount of R2 432 000.00 ( Two Million Four Hundred and Thirty Two Thousand Rand ) in respect of the Plaintiff’s claim for General Damages and Loss of Earnings, payable into the Plaintiff’s attorneys of record’s trust account with the following details: - Account Holder: Ehlers Attorneys Bank Name: FNB Branch Code: 261550 Account Number: 6[…] 4. The Defendant shall be liable for interest on the aforementioned amount from the 15 th day after date of this order, at the prevailing rate of interest, as determined from time to time, in terms of the Prescribed Rate of Interest Act, 55 of 1975 , as amended. 5. The Defendant is ordered to furnish the Plaintiff with an undertaking in terms of Section 17 (4) (a) of the Road Accident Fund Act 56 of 1996 , for the payment of 80% of the costs of future accommodation in a hospital or a nursing home or treatment of or rendering of a service or supplying of goods to the injured after such costs have been incurred and on proof thereof, relating to the injuries sustained by the Plaintiff on 21 April 2018. 6. The Defendant is ordered to pay the Plaintiff’s taxed or agreed party and party costs on the High Court scale, in accordance with Rule 70 of the High Court, subject to the discretion of the taxing master. 7. The costs of Adv Jaco Bam, briefed and appearing for trial, shall be taxed on scale C in accordance with Rule 69 and Rule 70 of the High Court. 8. The above costs shall be payable within 14 days from the date upon which the costs are taxed by the taxing master and/or agreed between the parties. 9. In the event that the Defendant fails to pay said costs timeously, it shall be liable for interest on the taxed and/or agreed party and party costs at the prevailing rate of interest, as determined from time to time, in terms of the Prescribed Rate of Interest Act, 55 of 1975 , as amended. JUDGMENT The matter was heard in open court and the judgment was prepared and authored by the judge whose name is reflected herein and was handed down electronically by circulation to the parties’ legal representatives by email and by uploading it to the electronic file of this matter on Caselines.  The date of handing-down is deemed to be 10 December 2024 . DAVIS, J Introduction [1] This case illustrates the invidious position courts are placed in, should a defendant, due to its default of appearance or lack of instructions, fail to contribute to a proper ventilation of a disputed claim.  During term, on average some 50 trials feature per day on the civil trial roll in the Pretoria seat of this Division.  The vast majority of these represent actions against the Road Accident Fund (the RAF).  In addition, some 20 matters feature daily on the settlement roll, which comprises of actions against the RAF which had become settled.  Only a slightly lesser congested situation prevails in the Johannesburg seat of this Division. [2] The daily roll-call of these trials and settled matters is handled by the Deputy Judge President (or Acting Deputy Judge President) or a senior judge designated by him in his absence. [3] It is an oft-repeated fact that, of the RAF trial matters on the daily roll, in only a small minority of matters, will the RAF be represented and even then, it is the rare exception where countervailing expert opinion or evidence of any manner whatsoever will be presented by the RAF. [4] The judge presiding over roll-call then has the unenviable task to allocate matters to six or seven colleagues, including acting judges, to each deal with anything between four to eight (sometimes more) trial matters on a largely unopposed basis.  This has the result that plaintiffs and the practitioners who advance their cases, do so with no opposition on behalf of the RAF as defendant.  Consequently the “gatekeeping” function of judicial officers become an onerous one.  Courts must in each instance assess whether the plaintiff is entitled to the amount of damages sought, which may often be exaggerated, without the benefit of the advantages of the adversarial system.  This also entails the absence of benefit of expert opinion on behalf of the RAf. [5] On 5 August 2024, I presided over the civil trial toll, which included the settlement roll.  Of the 22 matters on the latter roll, 11 were allocated to two judges each.  Of the 4 non-RAF trials on the trial roll, two proceeded and were allocated to two other judges respectively.  Of the 3 opposed divorces, 2 were settled and one was postponed.  This lead to 54 other RAF trials to be dealt with.  Of these, 24 could be allocated to other judges and the remainder either became settled or could be disposed of after a summary hearing. [6] The plaintiff’s claim was however, one of those which could not be disposed of so summarily and after a full, and occasionally heated argument from the side of plaintiff’s counsel, the debate lead to judgment being reserved. The plaintiff’s case [7] The plaintiff was 49 years old when she, as a pedestrian, was hit by a taxi while she was crossing an intersection in Umlazi on 21 March 2019. [8] At or during the roll-call referred to in the introduction of this judgment, the parties reached a settlement on the issue of merits.  The RAF, represented by Ms Van Zyl from the State Attorney’s office, accepted liability for 80% of the plaintiff’s proven damages.  Apart from agreeing to this apportionment and to the presentation of an offer of settlement to the plaintiff, which included an acceptance of the seriousness of the plaintiff’s injuries, Ms Van Zyl had no other instructions, nor had she been furnished with any expert reports or opinions. [9] The plaintiff had received treatment at a public hospital and did not pursue a claim for past medical expenses.  There was no dispute that, in respect of future medical expenses, the RAF would furnish an undertaking as contemplated in section 17(4) (a) of the Road Accident Fund Act [1] (the RAF Act). [10] In respect of general damages, after the RAF’s offer had been rejected, the only assistance that Ms Van Zyl could offer to the court in determining an appropriate award, was to argue that the amount sought by the plaintiff exceeded beyond her instructions. [11] The principal issue was therefore the plaintiff’s claim for loss of earnings and earnings capacity.  In order to prove her claim, the plaintiff had delivered a number of expert reports.  These reports were supported by affidavits from the respective experts and the plaintiff relied on the acceptance of this affidavit evidence pursuant to an application in terms of Rule 38(2).  The RAF did not object to this and the Rule 38(2) application was granted.  The RAF had not delivered any expert reports. [12] The plaintiff’s injuries were largely (although not exclusively) orthopeadic in nature and were summarised in extensive heads of argument submitted on her behalf as follows: a left distal tibia/fibula fracture, a T4 – T6 compression fracture, a scalp laceration, loss of two front teeth, concussion and a soft-tissue neck injury. [13] The plaintiff has undergone surgery for the lower limb fractures, which included stabilization by way of external fixation.  The fractures also resulted in peroneal nerve damage, leaving the plaintiff with a “drop foot”.  She now ambulates with the use of a crutch. [14] In justifying a claim for R1 million for general damages and some R5 million for loss of earnings, the plaintiff relied on all of the expert reports referred to above.  It was however, difficult to follow in the heads of argument which portions of those reports the plaintiff specifically based her case on as the heads, repeatedly and extensively, included selected excerpts from the various reports in bold print, interspersed with underlining.  This was ostensibly done to ensure that the judge reading the heads does not “miss” anything.  This is an improper practice and did not assist at all. [15] Nevertheless, the “most intensive” sequalae (to use the words of plaintiff’s counsel) which the plaintiff sought to highlight, again by way of direct quotation from the various reports, were the following: Orthopeadic surgeon -        The patient up till present suffers from chronic pain, left lower limbs as well as thoracic spine and remains dependent on analgesics … concentration as well as memory seems to be a problem.  Headaches experienced at least three times per week … neck stiffness reported as well as pain on left side of neck … pain experienced upper back … loss of two upper front teeth … left leg, established “drop foot”; the patient experiences pain on a daily basis of left ankle and foot and has to use a crutch to be able to walk; the patient mentions pain at night, swelling of left ankle; there is a significant loss of motor power in the left ankle and foot; mal-alignment, post-traumatic osteoanthrosis left ankle; neurological damage to left lower limb, upper thoracic T4, T5 and T6 compression fractures with mechanical back pain. Neurosurgeon -                    Severe limitation in range of active and passive movements; left lower leg and ankle; headaches; memory loss; back pain; chronic left ankle pain; difficulty walking. Neuropsychologist -             Collateral information from her daughter: her memory has deteriorated, her mother has been forgetful of conversations and misplacing things, displaying mood swings, short-tempered and has displayed verbal anger outbursts.  Ms Khwela has been struggling to multi-task. Neuropsychologist -             Ms Khwela was subjected to a comprehensive neuropsychological assessment which confirms that she has been experiencing cognitive problems …   It is therefore postulated that, in the absence of a significant head injury, her neuropsychological presentation is considered to be the result of post-accident psychological dysfunction associated with significant depression symptomatology and features of a post-traumatic stress disorder, exacerbated by ongoing physical limitations and pain.  In conclusion, the plaintiff’s involvement in the accident has resulted in a decline in her cognitive, psychological and physical functioning which in turn has compromised her self-esteem, interpersonal functioning as well as her quality of life and which has threatened her future earning capacity. Orthotist -                              Ms Khwela has equinus on her left foot … people with equinus develop ways to compensate for their limited ankle motion and this often leads to other foot, leg or back problems. Plastic surgeon -                  Her scarring and disfigurement has made her extremely self-conscious and shy.  It has seriously affected her femininity and the way she dresses … her scarring and disfigurement (severe limping gait) subject her to social rejection, stigmatization and inappropriate remarks and comments by her pupils and strangers. Occupational therapist -      Her limitations are considered permanent and may even deteriorate with time, given the osteo-arthrosis of the left ankle and degenerative changes in the neck and spine. Industrial psychologist -      Considering the collateral information obtained, the plaintiff is merely coping in her accommodating position and it is evident that she will never be able to fulfil the physical and psychological demands required in her premorbid role.  Resultantly, her employability will always be affected and she will be at a higher risk of becoming unemployed.  Best-case scenario, the plaintiff will most likely remain in her current accommodating position with similar earnings, until she applies for early retirement … a considerably higher post-accident contingency deduction is suggested. General (non-pecuniary) damages [16] It is clear that the plaintiff has suffered a loss of amenities and will in future continue to suffer such a loss.  She must be compensated for it. [17] There is a dearth of evidence of the treatment received, apart from that following immediately upon the accident and the surgical interventions to stabilize the left lower limb fractures.  All the experts agree that physiotherapy, psychological sessions and pain management are needed but there is no evidence of whether this has been obtained and, if so, how it will relieve the plaintiff’s symptoms and complaints and better her life.  Had she been unable to obtain medical intervention up to now, then notionally, once an undertaking has been furnished and other payments have been made by the RAF, the plaintiff would be able to obtain some relief. [18] She will, however, still be left with a “drop-foot” and has the permanent impairment of her mobility and gait.  As for scarring, the only facial scarring is from a laceration under the hairline.  The other scarring is lower-limb orthopeadic intervention wound scarring and does not appear to be significant when compared to cases dealing with such sequelae [2] . [19] It is further trite that, in assessing general damages, a court may be guided by case law and the awards granted in comparable circumstances [3] . [20] On behalf of the plaintiff, reference was made to a number of such cases.  The first was Kgopyane v RAF [4] .  That case is however, summarily to be distinguished on the facts relating to the injuries. The plaintiff in that case sustained a pelvic fracture and was left with permanent bladder incontinence.  Her pelvic fracture had not healed property, leaving her with significant hip displacement.  None of those injuries feature in the matter under consideration. [21] The next case relied on was Schmidt v RAF (for which no reference had been provided) but again, the injuries summarized in the heads of argument were distinguishable.  In that case the plaintiff suffered numerous fractures to all the upper and lower limbs as well as ruptures of cruciate knee ligaments.  The current value of the initial award of R600 000,00 in 2006 was estimated to be R1 450 000,00. [22] Reliance was also placed on Tobi v RAF (again without a proper citation).  Reportedly, the plaintiff in that matter, who was coincidentally also 49 years old at the time, suffered a disfigured left leg (and also some scarring on his right leg).  He experienced pain while walking and the current value of the award given, is R750 000,00. [23] In similar fashion, reference was made to Makeke v RAF , where a plaintiff had lost three teeth and sustained injuries to his jaw, shoulder and neck.  The award granted again translated to a current value of R750 000,00. [24] Another case relied on, was Rae v RAF (also without citation).  In that matter, where the current value of the award was R1, 3 million, the plaintiff sustained a fracture of a femoral shaft, a tibia/fibula fracture, a fracture of the right patella, a fracture of the left humerus, as well as an injury to a right foot and teeth fractures. [25] On behalf of the plaintiff, reference was made to nine further cases, all with distinguishable features.  The references to case law illustrated two things: firstly, it will be exceptional if two cases are so similar as to be almost indistinguishable and secondly, it is improper to cherry-pick items of similarity in different cases and to rely thereon (again, by way of bold font and underlining) in order to justify a particular narrative, unless those cherry-picked items had been individually considered by the other court.  Generally, that would not be the case. [26] One is reminded of the following comment made in Minister of Safety and Security v Seymour [5] : “ The assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty.  The facts of a particular case need to be looked at as a whole and few cases are directly comparable.  They are a useful guide to what other courts have considered to be appropriate, but they have no higher value than that … ”. [27] In considering the cases referred to and taking into account the indirect evidence produced (the plaintiff had not testified) I am of the view that a fair and reasonable amount of compensation for non-pecuniary damage in the circumstances would be R850 000,00. Loss of earnings [28] For purposes of justifying a claim of R4 442 220, 00 (later capped to R4 435 453,00 and thereafter “updated” to R5 023 941.00) plaintiff’s counsel relief heavily on excerpts from the various expert reports referred to. [29] Customarily opinions expressed by witnesses are inadmissible.  This is so because opinions do not constitute real observations or evidence of experiences [6] .  Opinion evidence expressed by experts is an exception to this general rule [7] .  The opinions expressed by experts, using their specialised knowledge, expertise and qualifications, must, however be based on facts and “properly admissible evidence” in order to be both admissible and have some value [8] .  Otherwise they are either inadmissible or of no assistance to a court [9] . [30] In the present instance, the plaintiff (and the experts on which she relied) attempted to indicate that, in all probability, the plaintiff will have her income eventually halved.  While there is little doubt about the correctness of the calculations in respect of past loss of income and the “but-for” scenarios, there is grave doubt as to the correctness of the calculations in respect of possible future loss of income.  In respect of the pre-accident projections, these were adequately supported by vouchers, salary slips and the like, as well as the plaintiff’s qualifications.  In respect of the post-accident postulations, one would have to interrogate the factual basis upon which the experts expressed their opinions. [31] At the time of the collision, the plaintiff was a full-time teacher.  She had been a teacher for many years and has even obtained additional teaching qualifications.  At the time when the industrial psychologist had performed her assessment in 2022, the plaintiff had been earning at a notch of R279 597,00 per annum.  In addition, she earned R1 450,00 per month from selling Tupperware.  In respect of these sales, “… it was noted that she would most likely have continued selling the products for the remainder of her life, even beyond retirement up to 70 or even 75 years ”. [32] Based on the above, the actuary employed by the plaintiff calculated her past loss of income, having applied 5% contingencies, at R570 386,00.  This figure, on the facts mentioned above, cannot be criticized. [33] The projected future value of the plaintiff’s income but for the accident, was calculated at R8 113 519,00.  After a 10% contingency deduction, this translated to R7 302 167,00.  This calculation also cannot be criticized. [34] Where I part ways with the plaintiff’s experts, is where they calculate her future income, now that the accident had occurred, to be R4 573 775.  This, so the actuary stated, was because he took the plaintiff’s age of retirement of both her formal and informal income to be at age 60.  He further assessed her notch increases at almost two-thirds of what he had used for pre-accident calculation and, although it is not entirely clear, appeared to have assumed that there would no longer be Tupperware sales. [35] The actuary’s figures were based on the industrial psychologist’s postulations which had, in turn, been based on the occupational therapist’s calculations.  Both these latter experts postulated that the plaintiff would have reached her career ceiling at age 55 (which she has already reached).  Post-accident, they however opined that the plaintiff “ will probably persevere in her less-than-optional state for another 2 – 5 years.  Working past the age of 60 is unlikely ”. [36] These experts also stated: “ Following the specialists’ opinions, the plaintiff’s current position is the most lucrative position for her and it is suggested that she maintains this employment tenure for as long as possible.  However, the probability for her to do so seems diminished and when following a conservative approach, the plaintiff will most likely apply for early retirement … ”. [37] Firstly, the postulations ignore the facts.  Admittedly the plaintiff can no longer teach as she had before and does so from a sedentary position.  An assistant teacher had been appointed to assist her, but this has been the position now for almost six years.  She is still picked up from home and dropped off by taxi “in front of her class” daily.  It is difficult to then accept the experts’ contention that the plaintiff “… will have great difficulties to continue working as a teacher ”.  There are no facts to support this postulation.  The recent history proves the opposite. [38] The collateral information (obtained by the experts telephonically) from the plaintiff’s deputy-principal is that, despite the plaintiff’s mobility difficulties “ her work has still been satisfactory.  The plaintiff has not currently been in any danger of losing her job ”.  This evidence also contradicts the said experts’ generalized postulations. [39] Apart from calculating a lower future projected income than what the probabilities indicate, the plaintiff’s representatives argued that a 30% “differential” be applied.  This was based on the industrial psychologist’s recommendation already referred to earlier.  The plaintiff’s actuary explained that a “higher” contingency generally implies a 20% differential and a “substantially higher” deduction would be by applying a 35% differential. [40] As justification for the differential applied, reliance was placed on Khathwane v RAF [10] .  In that case however, the plaintiff’s injuries had been found to have a “devastating effect” on that plaintiff’s future employability.  In contract, the present plaintiff had simply returned to work after her period of recovery and had continued to do so.  Factually, there is no similar “devastation” on which the plaintiff’s experts can validly base their opinions on. [41] As I have indicated earlier, expert opinion is presented in order to guide or assist a court to come to a decision on a disputed issue.  Expert opinion should, however not be overstated to such an extent that a court’s own capabilities and responsibilities are disregarded [11] .  This is what would happen, were this court to follow the unfounded postulations of the plaintiff’s experts in the fashion as urged by the plaintiff’s counsel. [42] In my view therefore, in the present matter, the plaintiff’s pre- and post- accident income should be taken to be the same.  The plaintiff is however, no longer the woman she was and therefore, the contingencies whereby provision for the vagaries of life and unforeseen events are catered for should now be higher.  I am of the view that tripling the contingencies allowed in the pre-accident scenario, resulting in a 20% differential, would be appropriate in the circumstances. [43] The result of the above finding is the following in respect of the plaintiff’s future loss of income, with reliance on the calculations performed by the plaintiff’s actuary: Value of income but for accident               8 113 519 Less 10% contingency deduction 811 352 7 302 167 Value having regard to accident               8 113 519 Less 30% contingency deduction 2 434 056 5 679 463 Net future loss R 1 622 704 [44] The effect of the above is that the assessed amount is not affected by the “cap” imposed by the Road Accident Fund Amendment Act [12] .  The total amount of damages awarded under this head is therefore R 2 193 090. 00 when the past loss referred to in paragraph [31] above is added to the calculation of the future loss. Conclusion [45] The plaintiff therefore succeeds in her claim for damages in a total amount of R 3 043 000,00 to which the appointment of 80% shall apply.  Costs should follow the event.  I have noted the Contingency Fee Agreement entered into between the parties on 21 March 2019, which appears to be statutorily compliant, save that the exclusions of VAT in calculation of the success fee as provided for in paragraphs 5 and 6 thereof, are deemed to be invalid and pro non scripto . Order [46] In the circumstances, the following order is made. 1. The Defendant is declared to be liable for 80% of the Plaintiff’s proven damages. 2. The Defendant is ordered to pay the Plaintiff an amount of R2 432 000.00 (Two Million Four Hundred and Thirty Two Thousand Rand) in respect of the Plaintiff’s claim for General Damages and Loss of Earnings, payable into the Plaintiff’s attorneys of record’s trust account with the following details: Account Holder: Ehlers Attorneys Bank Name: FNB Branch Code: 261550 Account Number: 6[…] 3. The Defendant shall be liable for interest on the aforementioned amount from the 15 th day after date of this order, at the prevailing rate of interest, as determined from time to time, in terms of the Prescribed Rate of Interest Act, 55 of 1975 , as amended. 4. The Defendant is ordered to furnish the Plaintiff with an undertaking in terms of Section 17 (4) (a) of the Road Accident Fund Act 56 of 1996 , for the payment of 80% of the costs of future accommodation in a hospital or a nursing home or treatment of or rendering of a service or supplying of goods to the injured after such costs have been incurred and on proof thereof, relating to the injuries sustained by the Plaintiff on 21 April 2018. 5. The Defendant is ordered to pay the Plaintiff’s taxed or agreed party and party costs on the High Court scale, in accordance with Rule 70 of the High Court, subject to the discretion of the taxing master. 6. The costs of Adv Jaco Bam, briefed and appearing for trial, shall be taxed on scale C in accordance with Rule 69 and Rule 70 of the High Court. 7. The above costs shall be payable within 14 days from the date upon which the costs are taxed by the taxing master and/or agreed between the parties. 8. In the event that the Defendant fails to pay said costs timeously, it shall be liable for interest on the taxed and/or agreed party and party costs at the prevailing rate of interest, as determined from time to time, in terms of the Prescribed Rate of Interest Act, 55 of 1975 , as amended. N DAVIS Judge of the High Court Gauteng Division, Pretoria Date of Hearing: 5 August 2024 Judgment delivered: 10 December 2024 APPEARANCES: For the Plaintiff:                                           Adv J Bam Attorney for the Plaintiff:                             Ehlers Attorneys, Pretoria. For the Defendant:                                      M Van Zyl Attorney for the Defendant:                       State Attorney, Pretoria [1] 56 of 1996. [2] See for example those summarized in Mashigo v RAF (2020/2014) [2018] ZAGPPHC 539 (13 June 2018). [3] Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (SCA) at 536 A-B. [4] (43235/2014) [2016] ZAGPPHC 872 (22 September 2026). [5] 2006 (6) SA 320 (SCA) at par [17]. [6] Ruto Flour Mills Ltd v Adelson (1) 1958 (4) SA 235 (T). [7] Hoffman & Zeffert, The South African Law of Evidence, 4 th Ed at 97. [8] Holtzhausen v Roodt 1997 (4) SA 766 (W). [9] Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 616H and S v Williams 1985 (1) SA 750 (C). [10] [2019] JOL 45275 (GP) at par 28. [11] Again, Holzhausen v Roodt supra per Satchwell J [12] 19 of 2005. sino noindex make_database footer start