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[2011] ZAGPJHC 249
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Monageng v Road Accident Fund (25199/2010) [2011] ZAGPJHC 249 (9 December 2011)
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 25199/2010
DATE:
09 DECEMBER 2011
In
the matter between
MONAGENG
ABEL
....................................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
EF
Dippenaar AJ
[1]
This is an action for damages sustained by
the Plaintiff in a motor vehicle collision which occurred on 9
November 2007. The Plaintiff
had been a passenger in one of the
vehicles involved and had,
inter alia,
sustained a moderate to severe brain
injury and permanent hearing impairment of the right ear in the
collision.
[2]
The Defendant has conceded the issue of
liability and the parties have agreed that the Defendant is 100%
liable for the proven damages
of the Plaintiff.
[3]
The parties have further agreed on general
damages of R450 000.00 and Defendant has provided an undertaking in
terms of
section 74
of the
Road Accident Fund Act, 56 of 1996
, as
amended (“the RAF Act”), in respect of past and future
medical expenses.
[4]
The issues to be determined in the current
action are the Plaintiff’s past loss of earnings and future
loss of earnings and/or
earning capacity due to the injuries
sustained in the accident in question.
[5]
Dr R Kellerman, an Industrial Psychologist,
Dr MA Gibson, a Neuropsychologist and Mr G Jacobson, an Actuary,
testified on behalf
of the Plaintiff. The Plaintiff did not testify.
[6]
The Defendant called the following
witnesses: Mr A Lamprecht, an Industrial Psychologist, Ms N
Sewpershad, a Clinical Psychologist
and Mr Jele, the Recruitment and
Operational Manager of the Plaintiff’s current employer, CRD
Security & Armed Response
(“CRD”).
THE
EVIDENCE
[7]
It was undisputed that at the time of the
accident, the Plaintiff was employed as a cashier at Engen. As he had
showed potential,
he had been recruited from Steers as he showed
potential for further advancement. Utilising the Motor Industry
Bargaining Council
scales, the Plaintiff would have been able to earn
substantially more as a cashier than in his current employment.
[8]
It was further undisputed that after his
recovery from the injuries sustained in the accident, the Plaintiff’s
position had
been filled and he received a retrenchment package of R5
000.00. Plaintiff used these funds to qualify as a C grade
security
guard.
[9]
It is common cause that Plaintiff was
unemployed for a period of eight months.
[10]
Plaintiff obtained employment as a grade D
security officer at CRD, Jeppestown, a position he still holds and
has held for the last
three years. Since being thus employed,
Plaintiff has been working night shift at a vacant property where his
job is to patrol
the grounds and a double storey house on the
property. There have been no incidents on the property and
Plaintiff’s record
remains unblemished.
[11]
Dr Kellerman, the Plaintiff’s
Industrial Psychologist, testified that the Plaintiff is probably
being employed sympathetically.
He may have difficulties in
performing his duties as he is prone to falling into a very deep
sleep and may struggle to make decisions
requiring judgment. In her
view, his continued employment as security guard is tenuous as his
employment as such constitutes a
risk, both to himself and others.
[12]
Dr Kellerman and Ms Sewpershad disagree on
whether Plaintiff has proper insight into his condition. Dr
Kellerman testified
that Plaintiff has no real insight into his
condition, has difficulty in making decisions and cannot make
accurate or appropriate
judgments in unfamiliar and sudden
situations. Ms Sewpershad was more positive that the Plaintiff
had proper insight into
his condition.
[13]
Ms Gibson testified that due to his
cognitive behaviour as a result of his brain injury, the Plaintiff’s
performance in life
would spiral downwards. He suffers short term
memory loss and will do exactly as he is told, rather than act on
his own initiative.
His own actions may be impulsive and
inappropriate. He would function better in a repetitive environment,
but would not function
well in an environment where split second
decisions are required or where a crisis may develop. Statistically
only 4% of individuals
with the type of brain injury suffered by the
Plaintiff, successfully and permanently return to the open labour
market. She testified
that Plaintiff would not cope in his present
position if he was required to make any plans, would never be able to
be a supervisor
and could never return to his previous employment as
a cashier. In her view, the Plaintiff was a vulnerable person who
required
sympathetic, supervised employment with a significant loss
of potential and capacity in his functioning.
[14]
Defendant’s Clinical Psychologist, Ms
Sewpershad testified that the Plaintiff showed no initiative and that
the tests she
had performed were done without stress and without time
constraints or pressure being applied. In her view, the
Plaintiff
could continue with his current employment. She could not
however render any assistance regarding current positions in the
labour
market and did not motivate her opinion regarding his
continued employment as a security guard on a logical or rational
basis as
she could not evaluate how the Plaintiff would cope with a
crisis or dangerous situation. She agreed that the combination of the
Plaintiff’s physical impairment, cognitive deficits and his
depression would be likely to limit his efficiency at work and
limit
his promotional possibilities.
[15]
Ms Sewpershad further testified that the
Plaintiff had made good recovery from his moderate to severe head
injury and that he would
stand to benefit from a combination of
psychotherapeutic and psychiatric therapy to face the reality of his
changed circumstances.
She however agreed that his current condition
was unlikely to improve.
[16]
Mr Lampbrecht based his view that the
Plaintiff was not at risk of losing his employment on his
conversations with the Plaintiff’s
current employer, CRD. He
agreed that if the Plaintiff were to lose his current employment, he
would struggle to cope or find alternative
employment. He further
agreed that the Plaintiff would be a vulnerable employee and that the
combination of his cognitive deficits,
depression and physical
impairment would likely limit his efficiency and curtail his
opportunities at promotion in the open labour
market where he would
have to compete with able bodied individuals.
[17]
The aforesaid experts agree that Plaintiff
has suffered cognitive impairment and that his present condition is
permanent.
He also has permanent loss of hearing in his right
ear.
[18]
The various experts ultimately agreed that
the Plaintiff needs a stable, routined and structured environment in
which to perform
his duties. They were also in agreement that the
Plaintiff’s functionality would be impaired in any unexpected
or emergency
situation, such as an armed robbery and that his
reactions could be inappropriate and would be unpredictable.
[19]
The parties’ experts ultimately also
agreed that, were the Plaintiff to lose his current employment, it is
unlikely that he
will successfully compete on the open labour market
and that he is vulnerable to not finding alternative employment.
[20]
The fact remains that the Plaintiff is
presently in gainful employment as a security guard and has thus been
employed for the past
three years without incident and to the
satisfaction of his employer. He is currently earning a salary of R3
000.00 per month.
His pre accident income was about R2 100.00.
[21]
The evidence of Mr Jele, the Operational
and Recruitment Manager of CRD that the Plaintiff has promotional
possibilities, seemed
to be more of a general and theoretical nature
in accordance with company policy to keep promotional opportunities
within the company,
rather than a positive endorsement of the
Plaintiff or a directed comment aimed at the Plaintiff personally in
his particular circumstances.
[22]
On a conspectus of the evidence, it is in
my view unlikely that the Plaintiff will ever be promoted. Moreover,
his prospects of
obtaining alternative employment were his current
employment to be terminated, are slim.
[23]
Mr Jele testified that at the time of
applying for employment, the Plaintiff had not disclosed his
disabilities to his employer,
who only became aware of these
disabilities during the course of the trial and whilst Mr Jele was
present in Court.
[24]
Both Dr Kellerman and Ms Gibson had
postulated the risk of Plaintiff’s services being terminated
and the risks involved in
retaining the Plaintiff as a security
guard, both to the Plaintiff, his employer and others. The issue
which ultimately needs to
be determined is whether there is a risk of
the Plaintiff’s current employment being terminated; and, if
so, how great such
risk is.
[25]
Both Dr Kellerman and Ms Gibson were of the
view that once the Plaintiff’s employer discovered the truth
and their shared
view that the Plaintiff should not be employed as a
security guard as his continued employment as such constituted a risk
(both
to himself and others), his employment would be in jeopardy.
They were of the view that, having regard to the risks involved, it
would be prudent for his employer to terminate his employment.
[26]
This is however not the response received
from Plaintiff’s employer, CRD who became aware of the
Plaintiff’s condition
and the aforesaid views during the course
of the trial.
[27]
I was informed by counsel representing
Defendant that the issue of Plaintiff’s continued employment
had been raised by Mr
Jele with the Managing Director of CRD who had
authorised Mr Jele to deal with the matter as he saw fit. Mr
Jele’s
approach was simple:
[27.1]
The company had a policy of growth from
within and wherever promotional opportunities arose; such post was
advertised and current
employees were invited to apply. Certain tests
were given to the applicants for a particular post, and the applicant
with the highest
test results received the promotion. The Plaintiff
would receive no special treatment, but would be treated like any
other applicant.
[27.2]
In relation to his continued employment, Mr
Jele again emphasised that the Plaintiff would receive no special
treatment.
[27.3]
Although Plaintiff had not disclosed his
medical condition on his application form prior to commencing his
employment with CRD,
it was still prepared to continue keeping
Plaintiff in its employ. There had been no substantial
difficulties regarding Plaintiff’s
work performance.
[27.4]
Mr Jele emphasised that Plaintiff’s
continued employment was entirely based on his work performance.
CRD’s standard
procedure was to offer an employee with
performance difficulties whatever alternative options were available
by, for example, exchanging
night shifts for day shifts if an
employee regularly fell asleep. Once all options were exhausted and
performance problems were
again encountered, such employee would face
a disciplinary hearing and, if found guilty, could face dismissal.
The Plaintiff’s
medical condition would not be taken into
account in the evaluation of his performance and he would be treated
on an equal footing
with his co-employees.
[28]
On the probabilities, it therefore appears
that if the Plaintiff were to experience performance related
difficulties, which on the
evidence before me ultimately seems
inevitable, his services may well be terminated as a result, as he
would receive no special
or sympathetic treatment from his employer.
[29]
On behalf of the Plaintiff it was argued
that Plaintiff is entirely unemployable and that his continued
employment constitutes a
safety risk, both to himself and others and
that he is effectively unemployed.
[30]
It was further contended that Plaintiff,
upon a comparison of his pre-morbid and post-morbid career paths, has
suffered a loss of
earnings, as he could never again perform as a
cashier or in a supervisory or administrative position.
[31]
The Plaintiff’s actuarial report was
not challenged on its calculations, nor was Plaintiff’s
Actuary, Mr Jacobson, cross-examined
extensively on these issues.
His cross-examination rather focussed on the variables /
contingencies taken into account in
respect of future loss of
earnings.
[32]
Mr Jacobson postulated various scenarios,
but ultimately left the issue of contingencies in the hands of the
Court. In his
view, a figure around the R600
000.00 mark would be an appropriate amount in respect of future loss
of
earnings.
[33]
The Defendant on the other hand, contended
that Plaintiff suffered only limited past loss of earnings in
relation to the eight months
period after the accident when he was
unemployed.
[34]
Defendant further contended that, in light
of Plaintiff’s current employment, he had suffered no future
loss of earnings,
nor had he suffered any future loss of earning
capacity and had not succeeded in proving any such loss.
THE
LEGAL POSITION
[35]
The
relevant principles applicable are usefully set out in
Union
and National Insurance Co Limited v Coetzee
[1]
and
in
Santam
Versekeringsmaatskappy Bpk v Byleveldt
[2]
.
[36]
It
is trite that there must be proof that a reduction in earning
capacity gives rise to a pecuniary loss
[3]
.
I have also been referred to a useful exposition of this issue and
the necessity of a causal link between the damage suffered,
i.e. loss
of earning capacity and the diminution of a claimant’s estate
before such damage can be said to be compensable
[4]
.
The upshot of the analysis is that a claim for future loss of
earnings and loss of earning capacity are interrelated and dependent
on each other and constitutes a single item of loss, provided of
course that a resultant actual loss of future income is shown.
[37]
On a conspectus of the evidence of the
experts they are in agreement that the Plaintiff has suffered
impairment in his functioning.
The question arises whether he has
proved an actual loss of future income and whether the requirements
for such a claim have been
met.
[38]
The only way in which the Plaintiff’s
performance may influence his patrimony is if there is a possibility
that he could lose
his current employment and/or be limited in the
number and quality of his choices, should he be forced to find
alternative employment.
This is indeed the basis on which the
Plaintiff’s evidence was led. On a factual basis, this is the
distinction with the
Deysel
case upon which the Defendant relies for its contention that no loss
has been proved.
[39]
In
Dippenaar
v Shield Insurance
[5]
it
was held that “
If
in our law earning capacity is to be considered an asset of a
person’s estate, it follows that the terms of contract
of
employment in a particular case, if relied upon, constitutes evidence
of such earning capacity at the time the delict was committed
”.
It would accordingly be short sighted to only consider the monetary
compensation earned by the Plaintiff at the time the
accident
occurred and not to also consider the type of employment he enjoyed
and the future promotional prospects possible to him.
It was not
disputed that the Plaintiff had shown promise for future enhancement
and managerial promotion, whereas at present he
is employed as a
grade D security guard where he must compete with all able bodied
contenders for promotional prospects, if and
when they may arise.
[40]
The Plaintiff procured his current
employment without disclosing the sequelae of his accident or the
impairment of his faculties
to his employer. He apparently initially
procured the employment by completing and passing a simple test and
without disclosing
his physical impediments. Although his present
employer is now aware of his condition and does not as a result
intend to alter
his employment, his continued employment remains
performance based and if a problem occurred, he would be treated like
any other
employee.
[41]
The Defendant contends that there is no
appreciable effect on the Plaintiff’s earning capacity and that
he has sustained no
loss under this heading.
[42]
In my view, having regard to the inevitable
risks involved in the Plaintiff’s continued employment until
the agreed relevant
age of 65, it would be unreasonable to discount
the possibility of the termination of Plaintiff’s current
employment. His
current employer could not and did not guarantee
Plaintiff’s continued employment.
[43]
The
percentage of the claim allowed for contingencies and circumstances
are dictated by the circumstances of each case. I have had
regard to
the principles enunciated in
AA
Mutual Insurance v Maqula
[6]
.
All the relevant facts and circumstances must be taken into account,
including that his injuries would continue to impact on his
performance at work on a permanent basis
[7]
and
I have sought to do so.
[44]
To my mind the correct approach is to
accept that the Plaintiff will be as gainfully employed as he will be
gainfully unemployed,
if only on the basis that any further pretence
at rational prediction, will be complete guesswork. Accordingly I
propose to apply
a contingency of 50% to the Plaintiff's loss of
future income, although the Plaintiff urged me to accept a
contingency of between
60 and 80%.
[45]
I do not agree with Defendant’s
contentions that the only risks Plaintiff is exposed to are the
normal risks of life such
as the continued existence of his current
employer.
[46]
Regarding the quantification of Plaintiff’s
damages under this heading, Mr Jacobson postulated various scenarios
which were
not strenuously attacked in cross-examination. None of his
calculations or assumptions have been strenuously attacked by the
Defendant
and his assumptions and calculations have been rationally
and logically explained in his evidence, which I accept.
[47]
I further accept a contingency of 15% in
respect of the prospective loss postulated by Mr Jacobson. Of the
three scenarios postulated
by Mr Jacobson, I am of the view that the
scenario based on a median to upper quartile unskilled worker is the
most appropriate.
On this basis, and after a contingency deduction of
50%, the Plaintiff’s prospective loss amounts to R650 517.00.
[48]
Having
regard to the impairment of the Plaintiff’s mental faculties, a
further issue arises. In
Reyneke
NO vs Mutual & Federal Insurance Company Ltd
[8]
the Court, in a similar case, granted an Order declaring that the
injured person was incapable of managing her own affairs; appointing
a curatrix
bonis
to her estate; defining the powers of the curatrix
bonis
;
directing that the appointment of the curatrix
bonis
and the exercise of her powers are subject to the control of the
Master of the Supreme Court and that she be directed to furnish
security to the satisfaction of the Master; and ordering that the
undertaking in respect of future medical and other expenses furnished
by the statutory insurer in that case, included the obligation on the
part of the statutory insurer to compensate the injured person
for
the remuneration of the curatrix
bonis
in administering the estate of the injured person, according to the
prescribed tariff and as taxed by the Master, and that the
remuneration of and the costs incurred by the curatrix
bonis
in administering the undertaking given by the statutory insurer as
and when those costs arise and subject to the taxation by the
Master
is included in the undertaking.
[49]
In order to protect the Plaintiff’s
interests, I am of the view that a similar order should be made here.
[50]
In the Plaintiff’s heads of argument
I was referred to a further calculation by Mr Jacobson relating to
the additional capital
required if a curator
bonis
is appointed to manage the monetary
award which is made to the Plaintiff. The curator
bonis
’
charges would be 1% plus VAT to be applied to the balance of the
assets each year. The average additional costs for the
curator would
be 13.5% applied to the amount of the capital to be administered by
the curator
bonis
.
[51]
I was further referred to a consent of a Mr
Gert Kruger of ABSA Trust, a nominee of that company authorised to
accept appointments
as trustee and curator
bonis
.
[52]
The Defendant did not raise any objections
to the appointment of a curator
bonis
.
In view of the fact that this issue was however not fully argued at
trial, an opportunity will be granted to the Defendant to
make
submissions regarding an amendment of the Order in this regard.
[53]
I am of the view that, given the
Plaintiff’s current state and in light of the recommendations
by the various experts, the
Plaintiff should not have control over
the funds awarded to him in this action, it would be prudent to have
a curator
bonis
appointed to administer these funds, the costs of which is to be
borne by the Defendant as part of its undertaking in terms of
section
17(4) of the RAF Act.
[54]
I am accordingly of the view that the
following amounts should be awarded to the Plaintiff:
[54.1]
Past loss of earnings (8 x R2 035.80) R16
286.40
[54.2]
Future loss of earnings/earning
capacity
R650 517.00
[54.3]
General damages as agreed R450
000.00.
[54.4]
The total monetary amount which the
Defendant is liable to pay Plaintiff, is accordingly the amount of R1
116 803.40.
[55]
I accordingly grant the following Order:-
[1]
Judgment is granted in favour of the
Plaintiff against the Defendant for payment of the sum of R1 116
803.40 made up
as follows:-
[1.1]
Past loss of
earnings
R16 286.40;
[1.2]
Future loss of earnings/ earning
capacity
R650 517.00;
[1.3]
General
damages
R450 000.00;
[2]
Interest on the sum in [1] above is granted
at the rate of 15,50% per annum from 24 December 2011; being fourteen
(14) days from
date of this Order as referred to in section 17(3)(a)
of the RAF Act, to date of payment.
[3]
The Defendant is directed, in accordance
with its undertaking, to provide a certificate of undertaking in
respect of the Plaintiff’s
future medical expenses in terms of
section 17(4) of the RAF Act, for 100% of 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 the supplying of
goods to him arising out of
the injuries sustained by him in the
motor vehicle collision that occurred on the 9
th
of November 2007.
[4]
Abel Monageng, born on 28 May 1978, ID no
7505285871084 (“Monageng”) is declared incapable of
managing his financial
affairs in relation to the proceeds of this
action.
[5]
Mr Gert Kruger of ABSA Trust is appointed
curator
bonis
to the estate of Monageng, with the power of substitution.
[6]
The curator
bonis
will have the following powers:
[6.1]
to receive, take care of, control and
administer the proceeds of this action;
[6.2]
to let, exchange, partition, alienate and
for any lawful purpose to mortgage or pledge any property which may
be acquired by Monageng
from the proceeds of this action or in which
he may acquire an interest;
[6.3]
to acquire, whether by purchase or
otherwise, any property, whether moveable or immovable, for the
benefit of Monageng;
[6.4]
to exercise any power or give any consent
required for the exercise of any power where such power is vested in
Monageng for his
own benefit, or where the power is in the nature of
a beneficial interest to Monageng;
[6.5]
to raise money by way of mortgage or pledge
of any of Monageng’s property for payment of his debts or
expenditure incurred
for his maintenance, or otherwise for his
benefit or for payment of, or provision for the expenses of his
future maintenance or
for the improvement or maintenance of any of
his property;
[6.6]
to apply any money for or towards the
maintenance or benefit of Monageng and to furnish him with a monthly
allowance;
[6.7]
to expend money on the improvement of any
property of Monageng by way of building or otherwise;
[6.8]
to expend any monies belonging to Monageng
on the maintenance, education or advancement of any relative of
Monageng, or any other
person, wholly or partially dependent on him;
[6.9]
to invest and reinvest monies for Monageng
which may be available for investment and which are not immediately
required for the
purpose referred to in
section 82(c)
of the
Administration of Estates Act 66 of 1965
;
[6.10]
to take any action which may be necessary
in the interests of Monageng or for the due and proper administration
of his property;
[6.11]
additionally, such powers as are laid down
in
Ex Parte Du Toit
,
1968(1) SA 33 (T).
[7]
The appointment of the curator
bonis
and the exercise of his powers are subject to the control and prior
consent of the Master of the High Court and he is to furnish
security
to the satisfaction of the Master.
[8]
Should the curator
bonis
fail to furnish security within 30 days of date of this Order, or
within such longer period as the Master may permit upon prior
written
application to him/her, or should he fail to apply for letters of
curatorship in terms of
section 71
of the
Administration of Estates
Act, 68 of 1965
within thirty (30) days of date of this Order, the
Master is authorised to appoint a curator/curatrix
bonis
of his/her choice.
[9]
The attention of the curator
bonis
is drawn to the provisions and
implications of
sections 71
and
28
, and
regulation 7
of the
Administration of Estates Act, 68 of 1965
.
[10]
It is declared that the undertaking in
terms of
section 17(4)
referred to above includes the obligation on
the part of the RAF to pay for:
[10.1]
the remuneration of the curator
bonis
in administering his estate according to the prescribed tariff and as
taxed by the Master;
[10.2]
the remuneration of and the costs incurred
by the curator
bonis
in administering the undertaking in terms of section 17(4) of the RAF
Act and when these costs arise and subject to taxation
by the
Master;
[10.3]
the costs incurred by the curator
bonis
in furnishing security to the Master.
[11]
The Defendant is directed to pay the costs
of suit, including the costs relating to obtaining medico-legal
reports and the qualifying,
reservation and trial fees of the
Plaintiff’s expert witnesses:
[11.1.1]
Dr R Kellerman;
[11.1.2]
Ms MA Gibson; and
[11.1.3]
Mr G Jacobson.
[12]
The parties are afforded an opportunity to
apply for leave to amend the Order in relation to [3] to [9] above,
within sixty (60)
days of date of this Order.
E
F DIPPENAAR
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing :9, 12 & 13 September 2011
Date
of judgement :9 December 2011
For
Plaintiff :Adv DP Strydom
:Moss
& Associates Inc
For
Defendant :Adv SS Masina
:Maponya
Inc
[1]
1970
(1) SA 295
A
[2]
1973
(2) SA 146
A
[3]
Rudman
v Road Accident Fund
,
2003 (2) SA 234
SCA
[4]
Riana
Deysel v RAF
,
Gauteng South Case Number 2483/09, judgment of Bizos AJ. See also
Prinsloo
v RAF
,
2009 (5) SA 406
SE
[5]
1979
(2) SA 904
A
[6]
1978
(1) SA 805
A;
Corbett
& Buchanan
,
739, where a 50% contingency was applied
[7]
Allie
v RAF
,
[2003] 1 All SA 144
C
[8]
1992
(2) SA 417
(T)