Mgenge v Road Accident Fund (D6622/2022) [2023] ZAKZDHC 99 (8 December 2023)

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: Kwazulu-Natal High Court, Durban South Africa: Kwazulu-Natal High Court, Durban You are here: SAFLII >> Databases >> South Africa: Kwazulu-Natal High Court, Durban >> 2023 >> [2023] ZAKZDHC 99 | Noteup | LawCite sino index ## Mgenge v Road Accident Fund (D6622/2022) [2023] ZAKZDHC 99 (8 December 2023) Mgenge v Road Accident Fund (D6622/2022) [2023] ZAKZDHC 99 (8 December 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAKZDHC/Data/2023_99.html sino date 8 December 2023 NOTING JUDGMENT CASE NO:                                                                                                          D6622/2022 In the matter between: Buselaphi Bonisiwe Mgenge Plaintiff and Road Accident Fund Defendant Delivery Date:                                                                     08 December 2023 In Court:                                                                             FF Time:                                                                                  9:30 Judge Delivering Judgment: Judgment Written By:                                                          S Singh AJ Judgment Delivered By: Pitman AJ Judgment Pages:                                                                10 Dissenting/ Concurring Judgment Pages: 0 Total: Secretary:                                                                           O Ngalonkulu 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 KWAZULU-NATAL LOCAL DIVISION, DURBAN Case no:D6622/2022 In the matter between: BUSELAPHI BONISIWE MGENGE                           PLAINTIFF and ROAD ACCIDENT 'FUND                                         DEFENDANT JUDGMENT S Singh AJ Introduction [1]      This is an action against the Road Accident Fund for damages and losses suffered as a result of bodily injuries and sequalae thereto caused by the negligent driving of the insured driver of a motor vehicle in which the plaintiff was a front-seat passenger on 5 October 2019. The issue of the merits has been resolved by consent between the parties. The outstanding issues are the quantum of the plaintiffs loss of earnings and general damages. [2]      On 9 October 2023, the defendant certified in writing the following facts which was signed and agreed to between the parties: (a)      The issue of negligence has become settled as the defendant conceded same on 29 September 2023. (b)      The defendant accepted that its insured driver was 100 per cent negligent. (c)      The defendant accepted that the plaintiff sustained a serious long-term injury and also accepted the RAF 4 serious injury report on 24 March 2023. (d)      The defendant accepted that the plaintiff is lawfully entitled to an award of general damages. [3]      The parties further agreed by mutual consent in court that (a)      The defendant is to pay the plaintiff for loss of earnings on or before 9 April 2024, and if such payment is made later than the agreed date then interest shall accrue thereon until final payment. Such payments are to be deposited into the plaintiffs attorney's trust account. (b)      The defendant is to furnish an undertaking in terms of s 17(4) of the Road Accident Fund Act 56 of 1996 as amended for all future medical and ancillary expenses after the accident. The defendant shall pay the plaintiffs costs on the party-and-party scale, on the high court tariff, inclusive of all costs for liability and quantum and reasonable costs of the plaintiffs seven experts (consultations, examinations, an reports, joint minutes and reservation fees) allowed by the taxing master, within 180 days of taxation. [4]      The plaintiff and defendant agree that the contents of the two sets of joint minutes of their experts, namely the occupational therapist and industrial psychologists are correct and not in dispute between the parties. [5]      The injuries sustained by the plaintiff as a result of the accident, set out in the joint minutes of the occupational therapists, are also not in dispute. They include: (a)      fracture of left and right femur; (b)      fracture of right tibia; (c)      pelvic fracture; (d)      blunt abdominal trauma; and (e)      head injury. [6]      The therapist further confirms therein that the plaintiff, at the time of the accident, was earning R1708.89 per fortnight as confirmed by the salary slips provided. Post-accident she did not return to work as she could not cope and has since remained unemployed with no post-morbid jobs obtained, due to the severity of her lower limb deficits and pain. The experts also recorded therein that the plaintiff suffered serious and painful immobilising disabilities which impacted her bodily functions including feet, hands and body mobility, balance, as well as her ability to walk, sit, stand, bend, squat, -crouch, kneel, and lift more than six kilograms. [7]      The industrial psychologists agreed in a joint minute that due to the accident the plaintiff was rendered compromised on a cognitive, physical and functional level which negated her future employment prospects (post-morbid) for the rest of her life. [8]      The plaintiff's seven experts submitted affidavits and in court, the parties confirmed and agreed further that there was no need for the witnesses to be called as they have settled various issues, as stated in paragraphs 3 and 4 above. [9]      Accordingly, this court directed that the leading of viva voce evidence by the experts is dispensed with, pursuant to the practice directive and the provisions of Uniform rule 38(2). [10]    The plaintiff testified as follows: (a)      She confirmed her pre-morbid and post-morbid physical, mental and emotional conditions, as well as the medical treatments done and required due to her sequalae post-accident. (b)      The various medical treatments included medications, hospital stays and several surgical operations in an endeavour to rectify a hole in her womb, her fractures in both legs, upper hips, knees, right ankle and left thigh. (c)      The plaintiff uses a walking stick for mobility post-accident because she has lost her balance on her left leg due to muscle wasting on the said leg. She was born in May 1973 and is currently 50 years' old. (d)      The plaintiff was employed and earned salaries per fortnight pre-accident, which would have been extended if no such accident had occurred which disrupted her body's emotional and mental abilities. [11] Nothing significant or relevant transpired under cross-examination of the plaintiff. Issues for determination [12]    The parties agree that the plaintiff has suffered loss of earnings which is continuous until age 65. However, the parties are in total disagreement as to the quantum and calculations in respect of loss of earnings and general damages. [13]    In particular, the parties disagree with the percentage allowance for a contingency deduction in the computation of the plaintiffs loss of earnings. In respect of the computation of the plaintiff's loss of earnings, the defendant placed reliance on Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) to justify the proposed figure of a 20 per cent contingency deduction. In that matter, a 20 per cent contingency deduction was substituted for the trial court deduction of 10 per cent in the 'but for' scenario based on, inter alia, the claimant's age of 26 years and her positive prospects of promotion in her work situation. Quite clearly, in my view, the facts in Guedes do not coincide or align with the facts before this court. Of importance is the major consideration that the plaintiff is not in her twenties but is middle-aged, namely 45 years' old at the date of accident and is currently 50 years' old. [14]  In assessing the general damages, loss of earnings and a proper contingency allowance for loss of earnings, it is vitally necessary to consider, as I hereby do, the following – (a)      the plaintiff's age; (b)      her constant and stable employment history pre-accident; (c)      her post-accident unstable physical bodily functions/disabilities, mental instabilities and emotional malfunction; (d)      permanent, significant loss of enjoyment and amenities of her work, family and social life; (e)      her inability to work post-accident; (f)       the experts' evidential contributions in their reports, including expert actuarial assessments, based on various additional factors· (g)      arguments raised by both parties in court; (h)      the fact that payment is to be made by the defendant by April 2024 failing which, interest shall accrue thereon until final payment as agreed between the parties; and (i)       awards made in comparable circumstances in cases similar to the case before this court for general damages, and R Koch The Quantum Yearbook 2023 ('Koch 2023'). Loss of earnings [15]    The actuary, Mr Loots, based his calculations on the following earnings, which information was provided by the plaintiffs industrial psychologist. Mr Jeeva, based on quoted payslips namely R1 708.89 per fortnight, with a retirement age of 65 years. In the supplementary actuarial report, his calculations are up until October 2023 with reference to the joint minutes of the industrial psychologists, the defendant's industrial psychologist's calculation is not based on payslip s . (a)  The projected payslip earnings according to Mr Jeeva are R44 363.80 at the time of the accident in 2019, with a retirement age of 65 years' old in 2038. The contingency deductions are left by the actuary for the court's decision. In light of Mr Jeeva's payslip calculations, the loss of earnings is calculated as at October 2023 as follows by the actuary: - Past R195 488 Future R661 364 TOTAL R856 852 (b)  The calculations projected by Mr Jeeva as reflected by the actuary are, in my opinion, the more realistic figures applicable from the figures provided by both industrial psychologists. The actuary mentioned, further, that the plaintiff has remained unemployed since the accident and is unemployable in the future as reported in the joint minutes of the experts. [16]    Based on the Koch 2023 calculations of contingencies for a middle-aged claimant, this court applies the following: (i)       Pre-morbid: five per cent. (ii)      Post-morbid: ten per cent. [17]    Accordingly, the computation for past loss of earnings is calculated as follows: Past loss of earnings R195 488.00 5% contingency R9774.40 TOTAL R185 713.60 [18]    The computation for future loss of earnings is calculated as follows: Future loss of earnings R661 364.00 10% contingency R66 136.40 TOTAL R595 227.60 [19]    Accordingly, the total loss of earnings is R780 941.20. General damages [20]    I now turn to the calculation of the general damages award which is claimed by the plaintiff up to the maximum amount of R1 500 000. [21]    There is no dispute as to the injuries The various physical, mental and emotional immobilising disabilities which impacted the plaintiff's functions after the accident are recorded and confirmed by the various experts. [22]    The orthopaedic surgeon, Leon Rajah, stated that the plaintiff: (a)      has recurring pain in her lower limbs and walks with a limp supported by a single crutch; (b)      has persistent difficulties walking up and down stairs; (c)      has no running ability; (d)      has a standing duration of less than 30 minutes and a sitting duration of less than 60-90 minutes; (e)      is unable to kneel and crouch; (f)       has a partial compromise of daily living activities; (g)      has sustained significant injuries and the functional impairment is permanent; (h)      will reasonably possibly require future medical treatment including the removal of metal implants, with a cost estimated at R250 000 inclusive of surgeon fees, anaesthetic fees, theatre fees, hospitalisation fees, and physiotherapy. [23]  The clinical neurophysiologist, Dr Palm, after examination of the plaintiff, noted that she had intellectually impaired performance which is attributed to her: (a)      low level of schooling (grade 1); (b)      current mood disorder; (c)      ongoing pain and discomfort due to her orthopaedic and soft tissue injuries; and (d)      decline of neurocognitive functioning due to the traumatic brain injury she sustained in the accident especially since her brain trauma was sustained in a probably already inflamed brain which led to secondary brain injury, which is reference to the sequelae of the accident injuries. [24]    The neurosurgeon, Dr Sameer Nadvi, assessed the plaintiff and noted or concluded that she: (a)      underwent open reduction and internal fixation of her right tibial fracture and bilateral femoral fractures; (b)      had conservative treatment of her bilateral pubic rami fractures; (c)      had undergone a laparotomy for repair of her bladder; and (d)      had a head injury which he classified as a mild traumatic brain injury based on her Glasgow Coma Scale (15 out of 15) and her four-hour post traumatic amnesia. [25] In addition to the aforegoing expert submissions, the plaintiff had been hospitalised for approximately three months and was discharged on 3 December 2019. Further, she was initially admitted to Mahatma Gandhi Hospital, thereafter to Addington Hospital and then to Stanger Hospital where she underwent four surgical procedures. There is a one centimetre shorting of her left leg and a four-centimetre muscle wasting on the same leg; she cannot be mobile without using a crutch, and her condition is permanent with no improvement in the future. [26]    Many similar cases were taken into consideration to assist with the final calculation of the general damages, including: (a) Mgudlwa and RAF 2011 (6 E3) QOO 1 (ECM) where R300 000 was awarded; the current value of which is R581 000· ' (b) Mpondo v Road Accident Fund [2011] ZAECGHC 24 where R550 000 was awarded, the current value of which is R1 021 000. [27]  It is trite that the trial court has a wide discretion to award what it considers to be fair and adequate compensation to the claimant for bodily injuries and sequelae therefrom (see AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A)). [28)  As stated in Protea Assurance Co Ltd V Lamb 1971 (1) SA 530 (A) at 535H- 536A, the process of comparison by having regard to previous comparable case awards is not in 'the form of meticulous examination of awards made in other cases in order to fix the amount of compensation', and should rather be used: “ ...  to afford some guidance, in a general way, towards assisting the Court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases. regard being had to all the factors which are considered to be relevant in the assessment of general damages.' Quite clearly, the claimant's injuries and sequelae in the case before this court are more severe and more serious which in my view requires a higher award of general damages in the sum of R1 200 000. [29]    Accordingly, I grant the following order: 1        The defendant is directed to pay the plaintiff the sum of R1 980 941.20 calculated as follows: (a)      Loss of earnings: R780 941.20 (b)      General damages: R1 200 000 2        The defendant is directed to furnish an undertaking in terms of s 17(4)(a) of the Road Accident Fund Act 56 of 1996 as amended for all of the plaintiff’s claims for future accommodation in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to the plaintiff arising out of injuries sustained in a motor vehicle collision on 5 October 2019 and described at paragraph 4 of the particulars of claim. 3        Payment of the sum referred to in paragraph (1) above shall be made on or before 9 April 2024 and if not made by then or before, shall accrue interest at the legally prescribed rate from 10 April 2024 until date of payment. 4        Defendant is to pay plaintiffs taxed or agreed party-and-party costs according to the high court tariff which costs are to include: (a)      All costs in respect of the issues of liability and quantum; (b)      The reasonable costs for the following plaintiffs expert consultation fees, medico-legal examinations, drafting of expert reports, supplementary reports, joint minutes and any reservation fee for reserved trial days (as allowed by the taxing master), namely: - i.        Dr Leon Rajah; Orthopaedic Surgeon; ii.        Dr Amar Singh; Radiologist (AfriRad Medical Imaging); iii.       Dr S Nadvi; Neurosurgeon; iv.       Dr H.S Palm; Clinical Neuropsychologist; v.        Yolisa Kobo, Occupational Therapist; vi.       Shuaib Jeewa; Industrial Psychologist; and vii.      Wim Loots; Consulting Actuary; (c)      Attorney fees including but not limited to perusing, preparation time, travelling time, fees regarding consultation with witnesses as well as attendance at court and travel for the trial set down on 9 October 2023 (as allowed by the taxing master). (d)      Counsel's fee on brief, to include (but not limited to): perusal of documents, preparations for consultations with expert witnesses, preparation for trial on quantum, consultation with the plaintiff and plaintiffs expert witnesses and attendance on trial from 9 October 2023 (as allowed by the taxing master). 5        The plaintiff will allow the defendant 180 (one hundred and eighty) days to make payment of the said taxed costs. 6        The payment referred to in paragraph 1 above is to be made directly into the Trust Account of the Plaintiffs Attorney, Dwarika, Naidoo and Company described hereunder: Standard bank Account number      0[...] Branch code           0[...] Branch                    Albert Street S SINGH AJ APPPEARANCES Counsel for the Plaintiff: VM Naidoo SC Instructed by: Dwarika Naidoo and Company Counsel for the Defendant: Suriakumarie Govender Instructed by: State Attorney, Durban Date of Hearing: 09 & 10 October 2023 Date of judgment: 08 December 2023 sino noindex make_database footer start