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[2014] ZAGPJHC 357
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Kruger v Road Accident Fund (16479/2011) [2014] ZAGPJHC 357 (21 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 16479/2011
DATE:
21 NOVEMBER 2014
In
the matter between:
GERHARDUS
LODEWIKUS KRUGER
.................................
Plaintiff
And
ROAD
ACCIDENT
FUND
..................................................
Defendant
JUDGMENT
HULLEY,
AJ
Introduction
[1]
The plaintiff is 52 years of age. On
23 August 2009, when he was 47 years old, he was a passenger in a
motor vehicle which
was involved in a collision with an unidentified
vehicle.
[2]
The plaintiff suffered serious bodily
injuries for which he sued the defendant, the statutory third party
insurer established for
the purpose of compensating persons injured
as a result of the negligent or other unlawful driving of a motor
vehicle.
[3]
At the commencement of the trial the
plaintiff initially sought payment of the amount of R3210,000.00
together with interest thereon
at the rate of 15.5% per annum
calculated from fourteen days from the date of judgment to the date
of payment, together with costs
of suit. At the conclusion,
however, the plaintiff moved for an amendment in terms of which the
capital sum claimed had risen
to R4 240 595,00 to bring the
claim into line with the evidence led. The amendment was not
opposed and was granted.
Common
cause facts
[4]
At the commencement of the proceedings and
by agreement a list entitled “
Common
Cause Facts”
was handed up.
[5]
Given its importance in determining the
issues in dispute I set out the common cause facts in detail:
“
1.
On 23 August 2009 Plaintiff was involved in a motor vehicle
collision in terms of which he suffered certain injuries.
2.
On 17 September 2014 the Defendant agreed to pay the Plaintiff 100%
of his proven and/or agreed damages.
3.
The Defendant shall provide Plaintiff with an undertaking in terms of
Section 17(4)(a) of the Road Accident Fund Act, 56 of 1996
(“the
undertaking”) for the costs of the Plaintiff’s future
accommodation in a hospital or nursing home or treatment
of, or
rendering of a service or supplying of goods to him arising out the
injuries sustained by the Plaintiff in the motor vehicle
collision
that occurred on 23 August 2009 after such costs have been incurred
and upon proof thereof.
4.
The only issues to be determined by the Honourable Court are the
following:
4.1
Estimated past loss of earnings;
4.2
Future loss of earnings and/or earning capacity;
4.3
General damages.
5.
The parties are in agreement that the facts contained in the report
and opinion expressed by Dr Read contained in the Plaintiff’s
expert bundle is true and correct.
6.
The parties are also in agreement that the facts contained in the
report and opinion expressed by Dr Volkersz is true and correct.
7.
The parties are also in agreement that facts contained in the report
and opinion expressed by Dr Scheepers in the Defendant’s
expert
bundle is true and correct.
8.
From the Orthopaedic Surgeon’s reports, the parties are in
agreement that the Plaintiff suffered the following injuries:
8.1
A head injury;
8.2
A fracture of the T12 vertebrae;
8.3
A fractured dislocation of the left shoulder;
8.4
a soft tissue injury to the vertical spine;
8.5
A soft tissue injury and deep laceration to the left side of the jaw;
8.6
that the injuries and
sequellae
suffered in the accident as described in the joint minute of Prof
Scheepers and Dr Volkersz is true and correct.
9.
The parties are in agreement that as a result of the Defendant’s
orthopaedic injuries:
9.1
The plaintiff could not return to his pre-accident occupation because
the work is too strenuous and physically demanding;
9.2
The Plaintiff copes with his work, but with difficulty;
9.3
The Plaintiff has suffered a severe decline in earning capacity and
earns a lot less than what he did pre-accident;
9.4
The Plaintiff has suffered a 41% whole person impairment and thus
qualifies for general damages.
10.
The parties are in agreement that the facts contained in the report
and opinion expressed by Maria Georgiou read with the findings
of
Keshika Naidoo together with their joint minute is true and correct.
11.
The parties are in agreement that the findings in the joint minute
are that the Plaintiff was unable to return to his pre-accident
employment and had to see alternative employment. He is currently a
service manager at Combined Motor Holdings, his work in this
area
being considered to be sedentary with occasional aspects of a light
nature.
12.
Ms Naidoo does not comment on head injuries, but defers to the
Neuropsychologist.
13.
The parties are agreement that the facts contained in the report and
the opinion expressed by Mr P Bruce White, a Plastic and
Reconstructive Surgeon, who found the following:
13.1
Well healed hypo-pigmented scars of the angle of the left side of the
jaw extending down the left side of the next onto the
chest.
13.2
Diminished movement of the left shoulder.
14.
The parties are in agreement that the facts contained in the report
and opinion expressed by Margie Gibson is true and correct,
in
particular that the Plaintiff sustained a brain injury of a moderate
degree with behavioural and effective changes.
15.
The parties are in agreement that the facts contained in the report
and opinion expressed by Dr Ranchod is true and correct,
in
particular that the plaintiff sustained a left axillary nerve injury,
resulting in weakness of abduction and external rotation
of the left
shoulder.
16.
The parties are in agreement that the facts contained in the report
and opinion expressed by Dr Leon Fine are true and correct
and
according to him, the Plaintiff suffered the following injuries:
16.1A
head injury with organic brain damages;
16.2
Cerebral impairment;
16.3
Accident-traffic-travel-related anxiety disorder; and
16.4
Depression.
17.
The parties are in agreement that the facts contained in the report
and opinion expressed by Dr H J Edeling, a Neurosurgeon
are true and
correct, in particular that the Plaintiff sustained the following
serious injuries:
17.1
Dislocation of left shoulder and fracture of left clavicle;
17.2
Back injury with compression fracture of T12 vertebrae;
17.3
Lacerations of both hands;
17.4
Abrasions/lacerations over left side of neck, clavicle and upper
chest wall;
17.5
Head injury with left periorbital haematoma and bleeding from left
ear;
17.6
Complicated traumatic brain injury of moderate degree.
18.
The parties are in agreement that the facts contained in the report
and opinion expressed by Dr Deon P Roussouw, an Ear, Nose
and Throat
Surgeon are true and correct.
19.
The parties are in agreement that the facts contained in the report
and opinion expressed by Dr Odette Guy are true and correct,
which
states as follows:
19.1
The Plaintiff presents with a speech, language and communication
profile that is characterised by mild and intermittent distortions
and misarticlations, with periods of rapid speech; adequate receptive
language skills; expressive language skills characterised
by low
productivity and mild and intermittent planning and formulation
difficulties.
19.2
The aforesaid profile is suggestive of injury to the frontal areas of
the brain.
19.3
The Plaintiff’s current speech, language and communication
profile corresponds with the findings of the experts, Dr Edeling
and
Ms Gibson, namely that his deficits and executive functioning are
suggestive of a brain injury.
19.4
Given the time that has passed since the accident, no further
improvements can be expected and his problems will remain permanent.
20.
The parties are in agreement that the facts contained in the report
and opinion expressed by Dr A M Kellerman, Industrial Psychiatrist
are true and correct, namely:
Pre-Accident
20.1
….
Post-Accident
20.2
The Plaintiff is now employed as a workshop supervisor in a
sympathetic employment environment, earning approximately R17 000.00
per month with a R3 000.00 incentive.
20.3
Both the incentives are not always reached 100%.
21.
For purposes of calculation, the parties agree that the Plaintiff
shall have to retire 7 ½ years earlier due to his injuries.
22.
The parties are in agreement that the calculation of Algorithm is
mathematically correct.”
(I have omitted all
references to the expert witnesses bundle which were contained in the
list.)
[6]
In addition, two sets of joint minutes were
handed up, one in respect of a meeting between the occupational
therapists, Ms K Naidoo and Ms Sarah-Kay Trollip,
and another in respect of a meeting between the orthopaedic surgeons,
Dr H Volkersz
and Prof A Scheepers. I was informed that the
parties accepted those aspects of the joint minutes upon which the
experts
were in agreement and neither had any intention of leading
further evidence in respect of those aspects upon which the experts
disagreed.
[7]
At the outset of the trial I was informed
that the parties had since compiling the list of common cause facts,
managed to reach
agreement on the amount to be awarded in respect of
general damages. In this regard, I was requested to make an
order in
the sum of R800 000.00.
[8]
Thus, the only issue upon which I was asked
to make a determination concerned the plaintiff’s past and
future loss of earnings.
The evidence
[9]
It is perhaps apposite, before dealing with
the testimony of those witnesses who were called to provide
testimony, to deal with
the medico-legal reports which were not in
dispute. I do not intend dealing with any of the reports in
great detail, and
do so only as a precursor to a consideration of the
loss of earnings of the plaintiff.
[10]
The plaintiff obtained a medico-legal
report from Dr Edeling, a neurosurgeon. In his report Dr
Edeling diagnosed the plaintiff
with a head injury with left
peri-orbital haematoma and bleeding from the left ear. He found
that the plaintiff had suffered
a complicated traumatic brain injury
of a moderate degree and concluded that these injuries had resulted
in post-traumatic neuro-psychological
and neuro- behavioural
disorders with recurrent cervicogenic headaches. According to
Dr Edeling the organic neurological
sequelae
of the plaintiff’s brain injury had stabilised and become
permanent. He stated that the plaintiff’s post-traumatic
headaches had become chronic and were expected to persist in variable
degree in the long term, although, so he said, they should
be
amenable to reasonable control with appropriate treatment.
[11]
A report was also obtained from Dr Fine, a
psychiatrist, who concluded that the plaintiff had sustained a head
injury with organic
brain damage. Dr Fine considered that the
plaintiff’s condition had become permanent and that it was
irreversible functionally.
[12]
According to Ms Gibson, an educational
psychologist, who provided the plaintiff with a neuro-psychological
assessment, the plaintiff
presented with difficulties consistent with
brain injury, particularly pertaining to areas such as attention,
memory and executive
difficulties. These problems, she opined,
were consistent with a brain injury of a moderate degree. She
felt that his
condition was permanent. Ms Gibson stated that
the plaintiff would, given his injuries, present with
sequelae
consisting of irascibility, aggression and irritation, that he would
lack empathy and understanding, was likely to over-react and
lack
motivation; his actions were likely to be less considered and he
would be given to impulsivity; he was likely to be error-prone
and to
require increased supervision, with affective support in a structured
non-stressful work environment; his relationships
were likely to
become increasingly strained.
[13]
As previously noted a joint minute was
completed by the orthopaedic surgeons, Dr Volkersz and Prof
Scheepers. They were in
agreement that the plaintiff had
sustained a fracture-dislocation of his left shoulder which was
reduced without surgery, ending
up with severe damage to his rotator
cuff and humeral axillary nerve palsy. The doctors were in
agreement that the prognosis
for his left arm was poor.
According to them the plaintiff sustained an anterior ridge
compression fracture of the T12 vertebra
with approximately 70% loss
of height, which has united with a resultant kyphosis. They
noted that the plaintiff suffered
a spontaneous fusion at the D11
onto D12 levels and has consequently ended up with a persistently
painful thoraco-lumbar spine.
They agreed that the plaintiff
will in future require an arthrodesis of his left shoulder.
Both doctors agreed that the plaintiff
would be incapable of working
in his original occupation given his orthopaedic injuries.
[14]
The occupational therapists, Ms Naidoo and
Ms Trollip, agreed that the work previously performed by the
plaintiff was of a light
to medium physical nature and that he was
incapable of performing that type of work post-accident. They
noted that the work
which he was presently performing was considered
to be sedentary with occasional aspects of a light nature and that he
was capable
given his injuries of performing the criteria of his
current job.
[15]
I turn now to consider the testimony of
those witnesses who testified. The plaintiff called three witnesses,
Mr Sean Singleton,
the plaintiff himself and Dr Anne-Marie Kellerman.
The defendant closed its case without calling any witnesses.
[16]
Mr Singleton is presently employed on the
Executive Committee of Combined Motor Holdings and has been in the
employ of that company
for the past eleven years. Combined Motor
Holdings is responsible for ten dealerships and franchises, among
others General Motors,
Honda, Kia and MG. The company’s
responsibility is to procure new and used vehicles for these
dealerships and franchises
and to sell them to the public. It also
procures and supplies parts. In addition, some branches do
panel-beating.
[17]
According to Mr Singleton, he has held the
position on the Exco for the past six months and has some
four-hundred-and-fifty people
reporting to him. He was
previously been the Dealer Principal at General Motors where the
plaintiff worked under him as the
Workshop Manager.
[18]
Mr Singleton testified that he considered
the plaintiff to be extremely diligent, mentally dexterous and was
capable of formulating
solutions to most problems without the
involvement of his seniors; he was exceptionally good with clients
and had a strong client
following.
[19]
The plaintiff’s work as Workshop
Manager required him to work with clients, looking after the service
providers, ensuring
that the work was properly carried out be
technicians, assisting them if they had a problem on the motor
vehicle, liaising with
their factories if there were major hiccups
and ensuring that the warranty was correctly allocated and paid for
and that the job
itself was properly dealt with under the warranty
and that the client accurately paid for services conducted. Mr
Singleton testified
that this was a particularly responsible job as a
substantial portion of it related to ensuring good customer
relations.
He testified that if clients did not return, it
would impact on the sales of vehicles as well as the sale of car
parts. According
to Mr Singleton, the plaintiff provided a sterling
performance which he rated as 10/10.
[20]
Mr Singleton testified that in 2009 the
plaintiff left the company as he wished to start his own business. He
regarded it as a huge
blow to him but made it clear to the plaintiff
that “the door was always open” and he was welcome to
return if his
own business failed. The plaintiff apparently
indicated that he would give himself 18 months to succeed, failing
which he
would return.
[21]
Mr Singleton testified that the plaintiff
earned approximately R30 000.00 at the time of his departure,
but he was of the view
that the plaintiff could earn significantly
higher, in the region of approximately R40 000.00 basic with a
further commission
of approximately R25 000.00 if he secured
employment as a workshop manager of a larger dealership.
According to him
the task of workshop manager at the bigger branches
entailed greater responsibility with commensurately higher earnings.
[22]
Mr Singleton considered that the plaintiff
would have been promoted to workshop manager at one of the bigger
workshops within a
period of three years had he not left. He noted
however that promotion to the larger branches was dependent upon the
availability
of posts.
[23]
He testified that the position of workshop
manager at the East Rand branch had recently become available and
that five people had
occupied that post in short succession. Four had
failed and the most recent incumbent had held the post for a short
while only.
[24]
In general, said Mr Singleton, the Group
preferred to promote people into positions within the larger branches
from within and then
fill vacancies at smaller branches, if
necessary, from outside. The structure within the workshops was
rigid and required
an understanding of the systems of the group, and
it was always preferable to promote from within.
[25]
Mr Singleton stated that the plaintiff
returned to him in approximately May 2010, sometime after the
accident had occurred. At the
time, there were no vacancies for
workshop manager positions and so he re-employed the plaintiff as a
foreman at Pre-Delivery Inspections
(PDI), where a vacancy did
exist. His intention, so he said, was to find the plaintiff a
position as a workshop manager once
such a position became available.
[26]
The plaintiff has remained a PDI Foreman
since his return. Mr Singleton testified that the plaintiff’s
work ability
had been severely curtailed. He is now much
slower, lacks the dexterity he once had, struggled physically, is
short-tempered
with customers and sales staff and sometimes displays
a ‘don’t-care attitude’. The plaintiff had also
become
forgetful and, as a result, had been placed in a position
which he described as “extremely structured”. The
plaintiff
is now incapable of performing the tasks of a workshop
manager, and there is little prospect of promotion.
[27]
The cross-examination of Mr Singleton
focused on the fact that the plaintiff could not have been aware of
the career progression
suggested by Mr Singleton. It was
indicated that the plaintiff had resigned because he was frustrated
and had reached his
career ceiling. Mr Singleton rejected both
propositions. He testified that the plaintiff would have been aware
of the possibility
of taking up employment with one of the bigger
branches.
[28]
He was cross-examined on a statement which
he had apparently made to Dr Kellerman and recorded in Dr Kellerman’s
medico-legal
report. The statement reads “Mr Singleton opined
that Mr Kruger would have been able to move to a bigger branch within
five
years’ time”. He was asked from which date that was
calculated. He testified that it would have been prior to the
accident.
[29]
In response to questions raised by me, Mr
Singleton testified that the company performed assessments on a daily
basis, that score
cards were kept and bonuses paid based on those
assessments. His assessment of 10/10 was based upon on actual rating
of the plaintiff,
but he was unable to produce the performance
assessment as the company had since moved from its previous premises.
He also testified
that he had not expressly advised the plaintiff of
his ambitions for him, but that it must have been clear to the
plaintiff that
he favoured him.
[30]
The plaintiff testified that he was a
Service Manager at Combined Motor Holdings until the end of 2008,
earning a salary of approximately
R34 000.00. He left the
company in December 2008 in order to start up a business with his son
in vehicle maintenance. He had
given himself a deadline of
approximately 12 to18 months to succeed after which, he would
consider returning. He believed that
he was capable of earning
approximately R50 000.00 to R60 000.00 per month and that
if he did not make that amount within
the proposed time frames, he
would return to Combined Motor Holdings. When asked why he had set
himself a target of approximately
R50 000.00 to R60 000.00
per month, the plaintiff testified that that is what service managers
in the bigger branches
earned and unless he was capable of earning
that amount of money, it would make no sense for him to continue in
his own business.
[31]
The plaintiff was quite confident that he
would have earned approximately R50 000.00 to R60 000.00
per month had he remained
with Combined Motor Holdings given his
performance prior to his resignation and his relationship with
Mr Singleton.
[32]
The plaintiff testified that he earned
approximately R20 000.00 per month at his own business. He
did not have any paperwork
to prove it because the business had since
closed down and that he was not aware of what had become of the
paperwork.
[33]
After the business failed the plaintiff
returned to take up Mr Singleton on his offer.
[34]
The plaintiff was employed at East Rand
General Motors working under a Ms Botha. She left the company towards
the end of 2010/beginning
of 2011. The plaintiff testified that he
was struggling at present, was unable to cope in the position, had
temper outbursts and
was physically incapable of moving heavy parts.
[35]
Under cross-examination the plaintiff
testified that he had commenced employment, after his return from the
accident, with Combined
Motor Holdings as a foreman. He testified
that he had not been promoted. On the contrary, he had been
demoted from the position
of Service Foreman to that of PDI Manager.
The PDI Manager post, he said, was supervisory. He testified
that he had not received
any increases since taking up employment
once again with Combined Motor Holdings.
[36]
Asked why he had resigned if he had the
promising career prospects he testified that in his view and with his
experience he was
satisfied that he would be able to earn more in his
own business. He was aware that a number of his clients would follow
him and
many of them in fact did. According to the plaintiff, he had
set himself a target of one-and-a-half years in which to achieve
R50 000.00
per month. He testified that prior to the accident,
things were looking promising, but that the accident intervened and
he was
entirely incapable of performing the work which he had
previously done.
[37]
Dr Kellerman testified on her report. She
confirmed its contents and its correctness subject to what she
described as “typos”.
Before considering her
testimony, I propose considering the contents of her report.
[38]
In her report Dr Kellerman set out the
plaintiff’s educational and work history. According to
her the plaintiff obtained
a standard 8 certificate in 1978 at
Ventersdorp High School. From 1979 to 2001 he was employed at
Tommy Martin Motors.
In 2001 he took up employment with Rand
Delta, but the company closed down and he moved to Combined Motor
Holdings in 2003 where
he remained until 2008. He left to start
his own business, Turbo Evolution. He returned to Combined
Motor Holdings
in May 2010 after the accident. Much of this
information was not tendered by the plaintiff when he testified.
[39]
Dr Kellerman testified that there was no
possibility of the plaintiff progressing in his current position and
that if he lost his
present employment, which she regarded as
sympathetic, it would be difficult if not impossible for him to find
work elsewhere.
She testified that in his present position, the
reason the plaintiff’s salary was not reduced was because of
the Labour Relations
Act which prohibited employers from effecting
reductions. She testified that Mr Singleton realised that the
plaintiff was even
slower than he had initially thought.
[40]
Under cross-examination, Dr Kellerman was
asked when an employee would normally reach his/her career ceiling.
She testified that
she did not believe in a career ceiling, that it
could differ from person to person and in some instances could be
well after retirement
age. She testified that a person’s
ceiling would depend upon his/her performance, the type of position
held and so forth.
[41]
That, then, was the totality of evidence.
Assessment
[42]
The
task falls to me to determine
the plaintiff’s past and future loss of earnings.
[43]
The
fundamental
principle of compensation in respect of claims based on the
lex
Aquilia
is that the plaintiff must be placed, insofar as this can be achieved
by the payment of a monetary sum, in the same position she
would have
been had the delict not been committed.
[1]
[44]
The
onus
is on the plaintiff to prove that he has suffered a loss and
what
that loss is. A court is bound to determine the extent of
damages to the best of its ability on the evidence available
to it.
However, it is not bound to do so where the plaintiff fails to adduce
evidence that was available to him.
[2]
[45]
The
‘
critical’
question in each instance is whether the plaintiff has produced all
the evidence she could reasonably be expected
to have produced.
[3]
The
reason for non-suiting a plaintiff who fails to adduce the best
available evidence of the damages she has suffered has been
fully set
out by Van Winsen AJ:
[4]
‘
Die
rede vir so 'n voorbehoud is dan ook ooglopend. Word 'n hof onder 'n
verpligting gestel om te poog om op die grondslag van onvolledige
getuienis 'n berekening van skade te maak in die geval waar daar
inderdaad afdoende of dan wel vollediger getuienis van skade
beskikbaar is, kan dit
ex post facto
blyk dat die hof se berekenings nie met die werklikhede strook nie en
'n onreg kan maklik die een of die ander van die partye aangedoen
word. Word die weerhouding van beskikbare getuienis ten opsigte van
skade eenmaal deur die howe op dié wyse geoorloof kan
dit
maklik gebeur dat 'n party doelbewus getuienis weerhou in die hoop
dat die hof se skadeberekening meer in sy guns sal uitval
as wat die
geval sou gewees het, indien hy die beskikbare getuienis wel voor die
hof geplaas het. Die alreeds moeilike taak wat
op 'n hof berus in
verband met skadebepaling sou daardeur oneindig moeiliker gemaak kon
word, en die faktore wat meewerk tot die
skep van onsekerheid by
sodanige bepaling sou vermenigvuldig word. Die omstandighede van die
onderhawige saak dien juis as voorbeeld
van die onsekerheid wat
geskep word waar beskikbare getuienis nie aangevoer word nie. In
hierdie saak staan dit vas dat groter
skade as gevolg van die tweede
as van die eerste botsing aan appellant se voertuig veroorsaak is en
dat as gevolg van altwee botsings
saam sy voertuig tans 'n wrak is en
'n waardevermindering van R550 ondergaan het. Uit die getuienis is
dit onmoontlik om met enige
mate van sekerheid te sê in watter
verhouding die twee ongelukke tot die algehele skade bygedra het. Uit
die getuienis is
dit nie af te lei waaraan dit toe te skrywe is dat
die voertuig vandag as 'n wrak beskou word nie. Dit mag daaraan toe
te skrywe
wees dat sy onderstel onherstelbaar beskadig is. Is dit wel
die geval dan volg dit nie noodwendig dat die groter skade aan die
bak, wat as gevolg van die tweede botsing veroorsaak is,
verantwoordelik is vir die onherstelbare toestand van die voertuig
nie.
Die hof kom dan voor die probleem te staan dat hy hieraangaande
moet raai terwyl uit die mond van appellant se prokureur verneem
moet
word dat hy in besit is van getuienis wat sal aandui 'presies van
welke bedrag skade ongeveer deur welke botsing veroorsaak
is'. Dit
kan nie van 'n hof geverg word nie om hom met raaiwerk of
bespiegelinge oor moontlikhede besig te hou wanneer daar tasbare
en
presiese getuienis aangaande die tersaaklike ondersoek inderdaad
beskikbaar is. Ook hierdie betoog dus gaan myns insiens nie
op nie.’
[46]
To discharge the
onus
which is upon him the plaintiff must establish that the damages for
which he contends is more probable than not.
[47]
In
determining what is probable a court must have regard to a number of
factors. These include the inherent probabilities
of the
respective versions, the credibility of witnesses and their
reliability.
[5]
[48]
Probability
is determined from the perspective of the
judex
facti
.
[6]
Where a particular assertion is inherently improbable, “belief
is slow and difficult”.
[7]
Interestingly, theories on the determination of probabilities are
more commonly encountered in the field of philosophy
[8]
and statistics
[9]
than they are in law. Ultimately, however, our courts must
borrow from these other fields if they are to retain any
credibility.
[10]
[49]
The
credibility of witnesses is determined having regard to factors such
as general veracity or candour and demeanour in the witness
box,
internal contradictions in a witness’s own evidence, external
contradictions with what was pleaded or was put on his
behalf or with
extracurial statements made by him, the probability or improbability
of aspects of his version and the calibre and
cogency of his
performance relative to that of other witnesses, partiality or
bias.
[11]
[50]
The
reliability of witnesses is considered primarily having regard to the
opportunities he had to experience or observe the event
in
question.
[12]
[51]
A trier of fact, having applied all the above factors, must
ultimately come to a conclusion as to whether the version contended
for by the party bearing the
onus
is more probable than not.
[52]
With
these
basic principles in mind
I turn to consider the facts of this case.
[53]
The plaintiff presently has presented a salary slip which
shows that he earns a salary of approximately R20 500.00 per
month.
This consists of a basic salary of R17 500.00 per
month with commission of approximately R3 000.00 per month.
Making
allowance for fluctuations in the commission earned by him, I
accept that the plaintiff’s present earnings are R20 000.00
per month.
[54]
During his first stint at Combined Motor Holdings, the
plaintiff earned a salary of R30 424.00 per month made up of a
basic
salary of R18 900.00 per month, a bonus of R4 000.00
per month and a management commission of R7 524.00 per month.
[55]
Given
these
facts, it is not
difficult to conceive that the plaintiff, upon his return would have
taken approximately 1½ years to reach
the level of R35 000,00
per month. Upon his return to Combined Motor Holdings, the
plaintiff was absorbed into the only
available position, that of
Service Foreman. He testified that he was subsequently demoted
to the position of PDI Manager,
without any financial impact.
At the time that the plaintiff was re-employed, Mr Singleton was
largely unaware of the plaintiff’s
injuries. He testified
that the plaintiff had informed him that he had been involved in an
accident, but he (Mr Singleton)
did not appreciate the severity of
the injuries. In these circumstances, I must accept that the
plaintiff’s injuries
played no part in the salary offered to
him in the new position.
[56]
Mr
Singleton
indicated that he
wished to return the plaintiff to his original post as Workshop
Manager, provided the post became available.
No evidence was
led as to when that might be. For the purpose of determining
the plaintiff’s loss and having regard
to the testimony
regarding the availability of the post in the East Rand dealership, I
have assumed that it would have taken the
plaintiff approximately
three years for such a post to become available.
[57]
As
things presently stand the plaintiff has
not received any increases during his second stint with Combined
Motor Holdings.
In my view, but for the accident, he would, in
all likelihood, have received increases in his post as Service
Foreman for the period
to date. The fact that he will not
receive such increases is attributable entirely to the injuries
sustained in the accident.
The difficulty that I am faced with,
however, is that I do not have information on how his salary would
have increased during this
period, but for his injuries. In the
circumstances, I have accepted that there was a loss but that it has
not been proved.
[58]
I am satisfied that once the plaintiff was
absorbed into the post of Workshop Foreman, on the same level that he
occupied prior
to leaving Combined Motor Holdings, his salary would
have been no less than that which he earned prior to his departure.
In all likelihood it would have been higher, but once again there was
no evidence of what it would have been. Thereafter his
salary
would have increased in line with inflation.
[59]
I have considered the evidence that was led
to demonstrate that the plaintiff would, in fact, have earned
substantially more in
a position as Workshop Manager of a large
dealership. What is clear is that for a period of 26 years the
plaintiff managed
to work his way up in the field of motor
mechanics. Having obtained his standard 8 certificate, he took
up employment with
Tommy Martin Motors, apparently as an apprentice
motor mechanic. He completed his trade examinations and then
worked as a
motor mechanic.
[60]
Ultimately, he progressed to the level of
Workshop Manager for a medium-size dealership with Combined Motor
Holdings where he earned
a salary of approximately R35 000.00
per month.
[61]
The plaintiff seeks to persuade me that his
salary would have increased to R65 000.00 per month within the
space of three years
of his return to Combined Motor Holdings had it
not been for the accident or that his income would have increased to
that level
within three years had he not left to seek greener
pastures elsewhere.
[62]
The amount of R65 000.00 per month
represents an increase of approximately 86% on the salary earned by
the plaintiff at the
time of his departure. The proposition is
so startling that it requires particularly cogent and persuasive
evidence.
In my view, such proof was not presented.
[63]
In any event, the proposition is dependent
upon the plaintiff’s success in the post of Workshop Manager
for a large dealership.
Elevation to that post may well have
been a poisoned chalice for the plaintiff. Mr Singleton
testified that where the managers
did not perform, they were
dismissed. (I assume that this would have been done in
accordance with the Labour Relations Act.)
[64]
In the present case it is clear from the
evidence of Mr Singleton that a series of managers had passed through
that position at
East Rand Motors. When appointing these
mangers the company must have been satisfied that they were up to the
task.
Yet they ultimately failed. The plaintiff may, likewise,
have failed in that position. I am, for instance, completely
oblivious
as to how the plaintiff stacked up relative to the four
other persons who had proved incapable of performing the functions of
the
Workshop Manager of a large dealership. Why would he have
succeeded in circumstances where they had all failed? No answer
was provided to this. In my view, the plaintiff failed to
establish that he would have earned at the level of R65 000.00
per month.
[65]
Having said that, it appears to my mind
that irrespective of what income the plaintiff would have earned in
his uninjured state,
such income was in most instances at least
greater than the loss imposed in terms of the capping under
Section
17(4)(c)
of the
Road Accident Fund Act.
[66
]
Section 17
of the
Road Accident Fund Act,
56 of 1996
provides, insofar as is relevant for present purposes:
“
(4)
Where a claim for compensation under subsection (1) –
(a) …
(c)
includes a claim for loss of income or support, the annual loss,
irrespective of the actual loss, shall be proportionately calculated
to an amount not exceeding ….”
[67]
The amounts referred to in sub-paragraph
(c) are adjusted quarterly by the Fund by notice in the Government
Gazette.This is to take
account of inflation. The amount applicable
to the plaintiff’s claim is R160 000.00 per annum (or
approximately R13333.33
per month). Where the loss is greater than
R13 333.33 per month, it would have no effect on the ultimate
award.
[68]
Against this background, I called for an
actuarial report to be provided on the plaintiff’s loss, having
regard to certain
assumptions.
[69]
In so far as contingencies are concerned, I
have accepted that contingency deductions of approximately 0.5% per
annum should be
applied for both past and future losses in respect of
pre-morbidity. I have, however, accepted that a contingency deduction
of
20% per annum should be applied to the post-morbidity future loss
scenario. This is to take account of the fact that the plaintiff’s
present employment is sympathetic and should he lose it, he may be
rendered unemployable. Because the date is so close to the agreed
date of retirement (57 ½ years old), I have not applied a
larger contingency deduction.
[70]
In the circumstances, and based upon the
actuarial calculations I have assessed the plaintiff’s loss of
earnings as follows:
70.1
Net past loss of earnings R 315027.00
70.2
Net future loss of earnings
R
1996277.00
70.3
Total net loss of earnings
R
2311304.00
[71]
To this must be added the amount of
R800000.00 agreed upon by the parties in respect of general damages.
CONCLUSION
[72]
Having regard to the aforesaid, I make the
following order:
72.1
The defendant shall to pay the plaintiff
the amount of R3 111 304.00.
72.2
Interest on the aforesaid amount at the
rate of 15.5% per annum, calculated from fourteen days from the date
of judgment to the
date of payment.
72.3
The
defendant shall pay the plaintiff’s costs.
G. I. HULLEY
Acting Judge
APPEARANCES:
PLAINTIFF: D J
Combrink
Instructed
by Renier Van Rensburg Inc.
RESPONDENTS: T J
Mosenyehi
Instructed by
Sishi Inc.
DATE OF HEARING:
22 September 2014
DATE
OF JUDGMENT: 21 November 2014
[1]
Hulley
v. Cox
1923 AD 234
at 244
[2]
Hersman
v. Shapiro & Co.
1926 TPD 367
at 379
[3]
Esso
Standard SA (Pty) Ltd v. Katz
1981 (1) SA 964
(A) at 970H
[4]
Mkwanazi
v. Van der Merwe & Another
1970 (1) SA 609
(A) at 632A-H
[5]
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
(SCA); H C Nicholas, “Credibility of Witnesses”
(1985) 102
SALJ
32
[6]
Nicholas,
op
cit
,
p. 43
[7]
Nicholas,
op
cit
,
p. 42
[8]
D. H. Mellor,
Probability:
A Philosophical Introduction
(Routledge, 2005)
[9]
J. Y. Halpern,
Reasoning
about Uncertainty
(Massuchusetts Institute of Technology Press, 2005)
[10]
D. T. Zeffertt
et
al
,
The
South African Law of Evidence
(Lexis Nexis Butterworths, 2003), especially at Chapters 2 to 4
[11]
Stellenbosch
Farmers' Winery v. Martell
,
supra
,
at 14J – 15B
[12]
Stellenbosch
Farmers' Winery v. Martell
,
supra
,
at 15B – C