About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 70
|
|
Makuapane v Road Accident Fund (2012/12871) [2015] ZAGPJHC 70 (10 April 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2012/12871
DATE: 10 APRIL 2015
In the matter between:
MAKUAPANE,
BOY
...................................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
SUMMARY
Motor vehicle accident – damages
– loss of earnings and earning capacity – 32 year old
mine forklift driver sustaining
severe fracture of right femur and
moderate concussive brain injury – collateral benefits from
pre-accident employer and
maxim of res inter alios acta alterti –
sympathetic employer – contingencies deductions.
J U D G M E N T
MOSHIDI, J:
[1] The plaintiff has instituted action
for damages against the defendant arising out of a motor collision on
Saturday 21 May 2011,
during which he sustained certain injuries.
THE JOINT MINUTES
[2] The plaintiff, a 32 year old mine
fork operator, was a passenger in the insured motor vehicle at the
time of the accident.
The injuries he sustained in the collision
included a severe fracture of the right femur, and a moderate
concussive brain injury.
[3] The joint minute between the
plaintiff’s orthopaedic surgeon, Dr G O Read, and that of the
defendant, Dr R A Morule, confirmed
the fractured right femur with an
associated knee injury. The doctors also noted that the plaintiff, a
matriculant, was unable
to return to work at Sebanye Gold Mine for a
period of four months following the accident. In the joint minute,
the doctors also
expressed the view that the plaintiff would be able
to continue in his present occupation without significant disability
in future.
[4] The neurosurgeons on both sides, Dr
S Marius and Dr F D Snyckers agreed that, there were no signs of a
pre-accident neurological
problem; that the plaintiff had a warning
at work because of his forgetfulness; that the plaintiff required
evaluation by the
various psychologists in order to establish the
effects that the injuries will have on his future career structure,
and his earning
capacity; and that the plaintiff sustained severe
long-term mental or severe long-term behavioural disturbances. The
plastic surgeons,
Prof L A Chait and Dr L Berkowitz, in their joint
minute, agreed that even with surgery, the plaintiff will be left
with serious
permanent disfigurement as a result of the injuries
sustained in the accident.
[5] The occupational therapists, Ms D
Brummer and Ms I C Kleynhans, agreed that the plaintiff will require
occupational therapy,
physiotherapy, biokinetics, specialised and
adapted equipment, assistive device, as well as a handyman and
orthotics since his
one leg is now shorter than the other. In
addition, the occupational therapists agreed that in spite of the
fact that the plaintiff
is capable of performing light natured work,
he can only perform certain aspects of medium work. Further, that
the repetitive
movement required in the plaintiff’s occupation
to operate the pedals of the forklift, and would place stress and
strain
on the affected joints.
[6] The clinical psychologists, Mr L
Roper and Mr O Modipa, agreed that the plaintiff’s
neuropsychological profile is consistent
with a mild-to-moderate head
injury. A head injury of such severity has the potential to result
in subtle neuro-cognitive and
neuro-behavioural changes. Further
that, in addition to the impact of the head injury, likely under the
influence of additional
factors, such as some pre-morbid cognitive
vulnerability including a possible previous head injury, physical
pain and the psychological
impact of the accident. The plaintiff was
rendered psychologically more vulnerable post-accident and its
aftermath. The clinical
psychologists also agreed in the joint
minute that the plaintiff’s quality and enjoyment of life, his
interpersonal, and
his occupational functioning, have been negatively
affected by the injuries sustained in the accident. His
psychological prognosis
may be hampered by his physical difficulties,
and the head injury, but his neuropsychological profile is expected
to remain vastly
stable since three years have passed since the head
injury was sustained. In their final recommendations, the clinical
psychologists
deferred to the occupational therapists for comment on
the impact of the physical injuries on the plaintiff’s
occupational
functioning, and to the industrial psychologists in
regard to career progression and earning capacity of the plaintiff.
[7] The clinical neuropsychologists, Mr
Ormond-Brown and Dr J C Rossi, also compiled a joint minute on 11
November 2014. Dr Rossi
believed that, pre-accident, the plaintiff
had above average intelligence. This, based on a previous head
injury which may have
rendered his brain more vulnerable to
subsequent head injury. However, both found similar
neuropsychological shortcomings. A number
of pre-existing conditions
also contributed. The plaintiff was involved in a second accident in
September 2014 (the accident under
discussion occurred on 21 May
2011), which is likely to have aggregated the effects of the first
accident physically and mentally.
The plaintiff returned to his
pre-accident employment, but he suffers fluctuating attention which
affects efficiency, it was noted
respect of loss of earnings. Mr
Ormond-Brown found that the plaintiff had suffered a brain injury of
significant magnitude to
create long-term problems. This evidence was
not in dispute.
COMMON CAUSE FACTS
[8] At the commencement of the trial,
the issue of liability was settled on the basis of 100% in favour of
the plaintiff. The defendant
has also provided the plaintiff with an
undertaking in terms of
sec 17(4)(a)
of the
Road Accident Fund Act 65
of 1996
, to make provision for payment of all future medical expenses
connected to the accident in question. In addition, the plaintiff’s
general damages for pain and suffering was settled in the amount of
R500 000,00 (Five Hundred Thousand Rand). In the amended particulars
of claim, the plaintiff had claimed R850 000,00 (Eight Hundred and
Fifty Thousand Rand).
THE ISSUES FOR DETERMINATION
[9] I turn to the only remaining issues
for determination in this trial. They are the issues of the past and
future loss of earnings
of the plaintiff. In the process of such
determination, it must be established as accurately as possible, what
the basic salary
earned by the plaintiff to use as a starting-point
for the calculation of such loss; the future opportunities the
plaintiff was
likely to be presented with, but for the accident; the
applicable contingencies deductions; and if plaintiff is currently
employed
sympathetically, the implications thereof. Care should also
be taken that if the plaintiff is in effect found to be
sympathetically
employed, the defendant ought not to be granted the
advantage thereof by necessarily diminishing the plaintiff’s
deserved
damages. In such a case, the court should make a finding
based on the legal maxim of res inter alios acta alteri nocere non
debet
(“res alios actu”). See for example, Richards v
Richardson
1929 E.D.L. 146
, where the Court held that plaintiff’s
damages could not be mitigated by the maxim res alios actu.
THE EVIDENCE OF PLAINTIFF
[10] The plaintiff testified. He had
plans to further his career and studies. He still held these
ambitions. He priority was to
obtain the position of a Mine Onsetter,
however, this position, requires three months of full-time studies.
Thereafter, that is
qualifying as a Mine Onsetter, the plaintiff had
planned to study towards the position of Engine Winding Driver which
requires
one year of full-time studies. His employers created these
opportunities. At the time of his evidence, the plaintiff was still
employed by his pre-accident employer, namely Sebanye Gold Mine, as a
forklift driver. He had been in this employment for some
five years.
The plaintiff expressed the view that his ambitions mentioned above
were shuttered by the accident.
[11] The plaintiff was cross-examined
briefly only. He confirmed that before the accident before 31 May
2011, he had the plans
to further his career and to study. In this
regard, he had applied to his employers to study, but his name went
onto the waiting
list. He did not know when his application would be
approved since his employers had budgetary constraints. He made
regular enquiries
and follow-ups. His basic salary was about R4
900,00 per month upon joining his company. His current salary was
about R5 600,00
per month, depending on the extent of overtime
worked.
EVIDENCE OF MS HOUGH –
PLAINTIFF’S INDUSTRIAL PSYCHOLOGIST
[12] Ms Hough, an industrial
psychologist, testified on behalf of the plaintiff. She was of the
opinion that the plaintiff has
certain difficulties in performing his
current position as a forklift driver that this would affect the
sustainability of his current
employment. This opinion was based on
collateral information obtained from the employer. The plaintiff is
presently being accommodated
in his position, and that he is
sympathetically employed. The largest contributor to this situation
are the orthopaedic injuries,
as well as the fact that he would
require frequent rest breaks, and ergonomic adjustments with pain and
strain of his joints as
indicated by the occupational therapist.
[13] Ms Hough also held the view that
in view of the cognitive difficulties established by the four
psychologists, and two neurosurgeons,
she does not foresee the
plaintiff fulfilling his ambition of furthering his career and
studies which will entitle him to obtain
the promotion that he so
cherished. The result is that this would factually render the
plaintiff prone to negligent error within
the working environment.
The plaintiff’s continued employment is at risk. For these
reasons, Ms Hough, in her evidence recommends
a much higher than
normal post-morbid contingency based on the finding that the
plaintiff is an unequal competitor in the open
labour-market
post-accident. Additionally, the plaintiff’s response
inhibition and irritation, might impact negatively on
interpersonal
relationships which will potentially make the plaintiff prone to
conflict in the working place with colleagues and
superiors.
[14] Ms Hough was cross-examined. She
motivated the difference of opinions between the defendant’s
industrial psychologist,
Mr L Marais, and her opinion. This, in
regard to the post-accident scenario. She was influenced by several
factors, including
that the plaintiff is 32 years old, with a matric.
She was adamant that the plaintiff would have progressed as a
forklift driver
in the mining sphere, but all that has been halted by
the accident. The plaintiff would have advanced to Paterson A3 level
at
approximately age 45. In the joint minute, Mr L Marais accepted
that the plaintiff could have progressed to the median of the Annual
Guaranteed Package Income on Paterson level A3, reaching his career
ceiling at age 45.
[15] On being further cross-examined on
the question of the plaintiff’s future employability, Ms Hough
deferred to the opinions
of the orthopaedic surgeons in their joint
minute referred to above. She could not explain the reason for the
opinion expressed
by Mr L Marais, where he differed with her. She
had regard to all the relevant reports compiled in this matter.
[16] During questioning by the Court,
Ms Hough testified that although the plaintiff was back to his
previous job, his future employability
is unpredictable. He has the
physical defects and sequelae of the accident. The plaintiff remains
a vulnerable employee. His
employer is sympathetic, and the
plaintiff can lose his job any time.
THE EVIDENCE OF MR L MARAIS –
DEFENDANT’S INDUSTRIAL PSYCHOLOGIST
[17] Mr L Marais, the defendant’s
industrial psychologist testified as the only witness for the
defendant. He relied largely
on his report dated 6 November 2014.
His views differed in sharp contrasts on crucial issues, to the
opinions of Ms Hough. In
essence, Mr Marais disputed, the
plaintiff’s actual salary pre-accident; that the plaintiff ever
applied to his employers
to study and advance his career; that on
return to work post-accident, the plaintiff is not functioning well;
that pre-accident,
the plaintiff would not had advanced to the
Paterson level as claimed; and, most importantly in this matter, that
the plaintiff
is not in sympathetic employment as alleged on behalf
of the plaintiff.
[18] Considered collectively, both in
chief and in cross-examination, the evidence of Mr Marais was not
well-founded and convincing,
on several levels. He was driven to
make certain vital concessions in cross-examination. In his report,
he set out the basis
on which the plaintiff may have been promoted in
future, and postulated that the plaintiff, but for the accident,
could have been
promoted to various other positions in the mine.
However, he crucially omitted to obtain any collateral information in
this regard.
It was not entirely clear that he questioned the
plaintiff on his future plans as well. Ms Hough, on the contrary,
took the extra
trouble to obtain vital collateral information, as she
testified. Significantly, Mr Marais foresaw the possibilities of a
promotion
but for the accident. The evidence of Mr Marais sounded
inherently speculative.
[19] There was more worrisome about the
evidence of Mr Marais. For example, he deferred to other experts on
the question of the
plaintiff’s future employability. As a
consequence, Mr Marais did not appear to fully and properly take into
account the
documented sequelae of, in particular, the brain injury
on the plaintiff. He was undecided, or contradictory in this regard
as
mirrored in his report as well as in the joint minute with Ms
Hough in regard to the probable impact the said head injury may have
on the plaintiff’s earning capacity.
[20] Furthermore, Mr Marais used, as
the basis for his recommendations on the plaintiff’s loss of
earnings a certificate which
was prepared by the HR Manager of the
mine indicating a basic salary of R3 596,00. However, no provision
is made in his report
for the total cost to company which is probably
the correct basis upon which any loss of earnings calculations should
be made.
In the circumstances, it appeared strongly that the
defendant’s attorneys may not have provided Mr Marais with the
salary
advices which indicate the correct remuneration for the
plaintiff, provided to them on 11 April 2011. These salary advices
show
that, for example, for the period 19 May 2011 to 17 June 2011,
the plaintiff earned a basic salary of R5 013,98 and a net salary
of
R4 617,62 per month. For the period of 18 June 2011 to 15 July 2011,
it was a basic salary of R5 013,98 and a net of R4 558,85.
So the
pattern continued showing the significant difference between what Mr
Marais had, and what the factual earnings were. The
final salary
advice for the period 15 February 2014 to 17 March 2014 the
plaintiff’s salary was a basic of R9 313,74 (including
allowances), and a net salary of R7 724,48. Mr Marais, regrettably,
did not refer to these salary advices anywhere in his report.
He
did, however, in fairness, acknowledge that actual earnings must be
utilised in the final calculations. The calculations prepared
for
the plaintiff and given to the Court, commenced on a rather
conservative basis, and ought equally be the basis for calculating
the plaintiff’s loss. This would not prejudice the defendant.
It should therefore be accepted that the basic salary earned
by the
plaintiff to use as a starting point for any calculation on loss, as
argued on behalf of the plaintiff, should be his cost
to company,
taking into consideration all benefits received in a 12 month cycle.
It followed that Ms Hough, and not Mr Marais,
was factually correct
in her recommendations on earnings, but for the accident.
WHETHER PLAINTIFF IS IN SYMPATHETIC
EMPLOYMENT
[21] I must make a finding on the
question whether or not the plaintiff is currently in sympathetic
employment. Ms Hough came to
the conclusion that the plaintiff is in
fact currently in sympathetic employment. He can lose his employment
any time. The conclusion
was well motivated and grounded. There was
no compelling reason to doubt or reject the conclusion. The credible
evidence was
overwhelming in favour of the plaintiff. The difficulty
inherent in the precise calculation of loss of earnings is a trite
matter,
which was made clear in cases such as, Southern Insurance
Association v Bailey NO
1984 (1) SA 98
(A), and numerous others. In
Bane v D’Ambrosi
2010 (2) SA 539
(SCA) at para [15], the Court
said:
“The essence of the computation
of a claim for loss of earnings is to compensate the claimant for his
loss of earning capacity
(see Byleveldt
1973 (2) SA 146
(A) at 150;
Dippenaar v Shield Insurance Co Ltd SA 94 (A) at 111). … When
a Court measures the loss of earning capacity,
it invariably does so
by assessing what the plaintiff would probably have earned had he not
been injured and deducting from that
figure the probable earnings in
this injured state (both figures having been properly adjusted to
their ‘present day values’.
But in using this
formulation as a basis for determining the loss of earning capacity,
the Court must pay care to make its comparison
of pre- and
post-injury capacities against the same background.”
This is the approach preferred in the
instant matter as shown later below.
[22] Based on the credible expert
opinions presented, the finding that the plaintiff is currently in
sympathetic employment, was
irresistible. The evidence was
overwhelming. Any other opposing views, as those of, for example, Mr
Marais, were in my view,
not well founded. There were numerous
decided case law in this high court where the courts held that, even
if found to be gainfully
employed post-accident, victims of accidents
who no longer functioned in capacities that they were employed for,
and as such entitled
to damages since they had sustained a complete
loss of earning capacities. See for example, Fulton v Road Accident
Fund
2012 (3) SA 255
(GSJ), where CJ Claassen J found that Ms Fulton,
in spite of being gainfully employed as a teacher at her school no
longer functioned
in the capacity that she was originally employed
for, had as such sustained a complete loss of earning capacity.
However, each
case must still be decided on its own merits and
peculiar circumstances. In my view, the res inter alio actus maxim
finds application
in this case in favour of the plaintiff. (Cf
Richards v Richardson, supra.) At best, the defendant’s
evidence showed that
it may have taken some time for the plaintiff,
but for the accident, to have been able to complete his studies, and
promotion,
in the furtherance of his career. Indeed, the plaintiff’s
calculations described more fully below, take into account these
difficulties by providing for a delayed period of almost seven years
to achieve his ambitions of becoming a Mine Onsetter, on the
but for
the accident scenario, and a further five years for promotion to the
level of Engine Winding Driver. On this basis, it
is plain that the
plaintiff has been overly cautious and conservative in his
calculations on loss in this regard.
THE PLAINTIFF’S ACTUARIAL
CALCULATIONS
[23] The plaintiff’s loss of
earnings have been calculated by Munro Forensic Actuaries based on
2014 terms, and on the evidence
of Ms M Hough, as well as on the more
reliable payslip advices, referred to earlier in the judgment, and
contained in Bundle G
of the papers (see para [20] above). The
calculation was on the following basis:
Basic salary - R4 892,00 per month
Living allowance - R1 820,00 per month
Shift allowance - average of R6 790,00
per month
Overtime - average of R909,70 per month
Capital - ER Provident Fund – 8%
of basic income
(tax-free)
Annual Bonus - 13th cheque.
The calculations were based on certain
probable assumptions. These included that plaintiff would have
progressed to Paterson A3
level (median), earning R122 700,00 per
year (2014 terms) by age 45, had the accident not occurred. Further,
that the plaintiff’s
income would have increased in line with
inflation until his retirement at age 62½. It was also
assumed that the plaintiff
will not earn further income. It was also
assumed, reasonably and factually, that the plaintiff suffered no
loss of income due
to the accident, apart from the short period
during which he could not earn any overtime. The gross figure of
loss of earnings
came to R2 077 100,00, excluding any application of
contingencies. In the last-mentioned calculation the conservative
approach
of the plaintiff was, once more, underpinned.
THE CONTINGENCIES DEDUCTIONS
[24] Mr Marais, on behalf of the
defendant, once more, did not deal with the issue of contingencies in
his report, and the application
thereof to the plaintiff’s
calculations. In these circumstances, it was not unreasonable to
infer that he deferred to the
Court. On the other hand, based on the
credible evidence that the plaintiff currently experiences
difficulties in his employment
environment, it was argued on behalf
of the plaintiff that a much higher post-morbid contingency i.e. 25%
contingency deduction,
should be applied. I do not agree. In
addition to the difficulties presently experienced by the plaintiff,
he is undoubtedly
in sympathetic employment. It is a precarious
situation. He may lose his employment any time. The sympathy of the
employer may
terminate sooner, or upon the plaintiff receiving the
award currently under discussion in this matter. The defendant must
take
its victim as it found him. In my view, a post-morbid
contingency deduction of 15% only, will be just and equitable in all
the
circumstances of this case. 15% percent of R2 077 100,00 is the
sum of R311 565,00. That leaves a net amount of R1 765 535,00.
ORDER
[25] In the result the following order
is made:
1. The defendant shall pay an amount of
R500 000,00 (Five Hundred Thousand Rand) in respect of general
damages to the plaintiff
arising out of a motor vehicle collision,
which occurred on 21 May 2011.
2. The Defendant shall pay the amount
of R1 765 535,00 in respect of loss of earnings to the plaintiff
arising out of a motor vehicle
collision, which occurred on 21 May
2011.
3. The amounts as mentioned in 1 (one)
and 2 (two) above are payable before 28 April 2015 into the trust
account for the plaintiff’s
attorneys of record with the
following details:
Wim Krynauw Attorneys
Absa – Trust Account
Account Number: [ 4…………]
Ref: TM4129/JC/WP
4. The defendant shall furnish the
plaintiff with an undertaking as envisaged in
sec 17(4)(a)
of the
Road Accident Fund Act, Act
56 of 1996, for 100% of the costs of the
future accommodation of the plaintiff’s in a hospital or
nursing home or treatment
of or rendering of a service, or supplying
of goods to the plaintiff arising out of the injuries sustained by
the plaintiff in
the motor vehicle collision which occurred on 21 May
2011, after such costs have been incurred and upon proof thereof.
5. The defendant shall pay the
plaintiff’s taxed or agreed party and party costs on the High
Court scale, which costs shall
include the costs of counsel for 3
(three) days as well as the costs attendant upon the obtaining of the
medico-legal reports and/or
addendum reports and/or preparation fees
and/or joint minutes if any and as allowed by the taxing master.
6. In the event that costs are not
agreed the plaintiff agrees as follows:
6.1 the plaintiff shall serve the
notice of taxation on the defendant’s attorney of record; and
6.2 the plaintiff shall allow the
defendant 7 (seven) court days to make payment of the taxed costs.
7. The contingency fee agreement
entered into between the plaintiff’s attorney and the plaintiff
is invalid.
8. The plaintiff’s attorney shall
only be entitled to recover from the plaintiff such fees as are taxed
or assessed on an
attorney and own client basis. The fees recoverable
as aforesaid are not to exceed 25% of the amount awarded or recovered
by the
plaintiff.
D S S MOSHIDI
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF M LETZLER
INSTRUCTED BY WIM KRYNAUW ATTORNEYS
COUNSEL FOR THE DEFENDANT ADV
MASENGENI
INSTRUCTED BY STATE ATTORNEY
DATE OF HEARING 19 NOVEMBER 2014
DATE OF JUDGMENT 10 APRIL 2015