Has the plaintiff made a case on a balance of probabilities, for its claim against the defendant?

May 1st, 2024
Sibuyi NO obo MMG v Road Accident Fund (NWM) (unreported case no RAF 68/2022, 27-3-2024) (Mfenyana J)

A mother approached the North West Division of High Court in claiming for damages for past and future medical expenses, pain and suffering, loss of amenities of life, disfigurement, disability, hospitalisation and medical treatment, and future loss of earning to the total amount of R 6 000 000. This was after the plaintiff’s child was involved in a vehicle collision on 4 July 2020, that left her injured. The High Court said that then facts that gave rise to the application were that on the day of the accident the plaintiff’s child was a passenger in a motor vehicle, a taxi driven by EL Mogorosi, when it collided with another motor vehicle driven by AA Moabi.

The High Court pointed out that the summons issued by the plaintiff, were issued on 7 February 2022. The High Court said that in the particulars of the claim, it was alleged that the sole cause of the collision was the negligence of AA Moabi, alternatively, the negligence of the drivers of both vehicles. The High Court added that it was further alleged that as a result of the collision, the plaintiff’s child sustained severe head injuries characterised, inter alia, by a period of unconsciousness, amnesia, brain damage, poor mental efficiency, poor eyesight and dilapidating headaches. She sustained a fracture to the base skull, a fractured left clavicle and multiple abrasions and lacerations. Further because of the collision, she experiences a change in personality, characterised by short temper, irritability, and aggression.

The High Court said that on 9 February 2023, legal practitioner, Mendrew Sibuyi, was appointed as curator ad litem to the plaintiff’s child. And in due course a notice of substitution was subsequently delivered amending the particulars of claim to reflect Mr Sibuyi suing in his representative capacity as curator ad litem to the plaintiff’s child. The High Court pointed out that on 6 December 2022, the defendant served its notice of intention to defend. The High Court added that there was no intention to defend that it was filed with the registrar of that court. The High Court said that it was only on 14 February 2023 that the defendant filed its plea together with three special pleas. The first special plea relates to the locus standi of the plaintiff to act on behalf of the minor child.

The second special plea and third special plea are identical and pertain to s 17(1) of the Road Accident Fund Act 56 of 1996 and submission by plaintiff, of a Serious Injury Assessment Report (RAF 4 form) after presenting herself for assessment by a medical practitioner. The High Court pointed that with regards to the first plea itself is essentially a bare denial, alternatively that the plaintiff contributed to the collision and negligence in that she failed to fasten the seatbelt when she was required to do so. The defendant claimed that negligence should be apportioned in terms of the Apportionment of Damages Act 34 of 1956.

The High Court said that on 6 December 2022, prior to filling its plea, the defendant served notices in terms of rule 36(4) and 35(14) for the plaintiff to deliver medical reports, hospital records, x-ray reports and other documents relevant for the assessment of the plaintiff’s claim. The High Court added that the plaintiff replied to both notices on 18 January 2023 and provided the requested documents. Thereafter the plaintiff filed its discovery, expert, and pretrial notices none of which was compiled with by the defendant. The High Court said the issue of merits was settled between the parties. The matter served before the High Court only on the issue of general damage and future loss earnings.

The High Court pointed out that what stood for determination was whether the plaintiff had made out a case on a balance of probabilities, for its claim against the defendant. The High Court added that in the heads of argument set out in the particulars of claim, was not persisted with. Instead, an amount of R 4 176 171 was said to be fair and reasonable to compensate for the injuries sustained by the plaintiff’s child made up of an amount of R 3 000 000 for general damages and R 1 176 171 for loss of earning capacity and future medical expenses. The High Court said in respect of general damages, Mr Mosenyehi averred that the amount of R 3 000 000 is justified in the circumstances after the collision and was transported to Thusong hospital and later transferred to Mafikeng hospital. The injuries the child sustained included a fracture of the base skull, pneumocephalus and post-traumatic amnesia with subarachnoid hemorrhage.

The High Court added that various medico-legal reports were submitted and relied on by the plaintiff. The defendant submitted no expert reports. The High Court said that post injury, it was recorded that she suffers from memory loss, difficulty speaking, poor coordination and tremors of her hands. It was further reported that the child experiences difficulty standing and walking and has poor balance. She mobilises with a walking frame.  

The High Court added that Dr Moja, the neurosurgeon who examined the child concluded that she suffers from ‘significant residual neurocognitive and neurophysical problems, and a speech problem related to her organic brain dysfunction. According to Dr Moja she has reached maximum medical improvement. Dr Moja evaluated her whole person impairment at 75%. The High Court said that a report from the urologist Dr Qubu, indicated that the child has neurogenic bladder and difficulty passing urine which associates with the phenytoin (anticonvulsant treatment) she is receiving.

The High Court also said that the occupational therapist, Ms Mashishi explains that the child has muscle tone abnormalities in her upper and lower right left limb muscles. She is expected to struggle with prolonged standing and walking. The High Court pointed out that the above findings from the plaintiff’s experts were not contested. The High Court said that at the time of the collision the plaintiff’s daughter was 31 years old, employed as a cleaner earning R 3 000 per month. Her duties involved a fair amount of standing and walking around attending to cleaning.

The High Court added that the clinical psychologist estimated her career, pre-accident, to include any unskilled position for which she was qualified, with earnings varying from median to the upper quartile of unskilled worker. The High Court said with regards to loss of earning capacity, counsel that the plaintiff relied on Bee v Road Accident Fund 2018 (4) SA 366 (SCA) for the proposition that the younger the victim the longer the period over which vicissitudes of life occur, thus deviating from the 15% contingency allowance proposed by the actuary and opting for 20%. In determining the amount to be awarded for general damages the court was granted by wide discretion.

The High Court had to determine whether the plaintiff has discharged the onus which rests upon it and determine the appropriate amount to be awarded. The High Court pointed out that it was referred to various divisions, where the plaintiffs in those matters had suffered brain injuries, as the plaintiff did in this case. The High Court said that it had considered the decisions pointed out by Mr Mosenyehi, for which it was grateful. Notably, in Bonnesse and Another v Road Accident Fund and Others (ECGq) (unreported case no 1505/2009, 20-2-2014) (Pickering J) in which the injuries sustained bear a closer resemblance to the present case.

The High Court added that it had also considered that the plaintiff’s daughter needed help with daily activities. The High Court further considered recommendation of the neurologist to the effect that the plaintiff’s daughter sustained a moderate to serve head injury which resulted in severe neurological sequelae, mild to moderate cognitive difficulty and post-traumatic stress disorder. The High Court said taking in account the circumstances of the present case, the injuries sustained by the plaintiff’s daughter, comparative awards, and the time-value of money. The High Court said it was of a view that an amount of R 2 200 000 would be fair and reasonable in these circumstances.

The order that the High Court made included that:

  1. The defendant shall pay to the plaintiff an amount of:
    i) R 999 551.25 in respect of future loss of earnings for the plaintiff’s daughter.
    ii) R 2 200 000.00 in respect of general damages for the injuries sustained.
  2. The amounts in i) and ii) to be paid with 14 days of date of the order.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2024 (May) DR 46.