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[2015] ZAGPJHC 109
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Makanatleng v Road Accident Fund (38660/2013) [2015] ZAGPJHC 109 (11 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 38660/2013
In the
matter between:
NORAH
MAKANATLENG
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J U
D G M E N T
VILAKAZI,
AJ
:
[1.]
The
plaintiff claims damages from the defendant for bodily injuries
sustained on 29 October 2010 while she was a passenger in a
motor
vehicle registration number RRB 282 GP. The plaintiff was [….]
years at the time of the accident and is now […..].
[2.]
The
matter is before me on quantum; the defendant having conceded the
merits. The plaintiff claimed damages from the defendant under
various heads, but they have all been disposed of by agreement. What
has not been settled is the claim for future loss of earnings.
I was
asked to determine this aspect of the plaintiff’s claim on the
facts which were presented to me by way of the stated
case.
[3.]
The
general approach of assessing damages for loss of earnings has been
stated in
Southern
Insurance Association v Bailey NO 1984(1) SA 98(A)
the court stated the following in this regard:-
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future…All
that the court can do is to make an estimate, which is often a very
rough estimate, of the present value of the loss.
It
has open to it two possible approaches.
One
is for the judge to make a round estimate of an amount which seems to
him to be fair and reasonable. This is entirely a matter
of
guesswork, a blind plunge into the unknown.
The other is to try
make an assessment, by way of mathematical calculations, on the basis
of assumptions resting on the evidence.
The validity of this approach
depends of course upon the soundness of the assumptions, and these
may vary from the strongly probable
to the speculative.”
It is manifest that
either approach involves guesswork to a greater or lesser
extent---------. There are cases where the assessment
by the court is
little more than an estimate; but even so, if it is certain that
pecuniary damage has been suffered, the court
is bound to award
damages”
[4.]
The plaintiff grew up in a stable family
background. In 2005 she obtained her matric certificate at
Nkgonyeletse Senior Secondary
School. Thereafter she attended
Winfield Security Training College and obtained Grade C, D, and E
level of security. As a result
of the aforesaid levels she is
qualified to perform the undermentioned duties:
4.1
GRADE E: basic level security guard,
patrol services in the area and goods.
4.2
GRADE D: access control, monitoring
the movements of individuals and motor vehicles, persons
and goods
and restrain individuals posing threat.
4.3
GRADE C: transportation and
supervision of security guards with a grade D and E level
of security certificate.
[5.]
According
to the industrial psychologist the plaintiff informed him in
2008/2009 she worked as a packer for approximately 1 year.
In 2010
she worked as a teaching assistant for 3 months. She left this job
for personal reasons in September 2010. At the time
of the accident
she was unemployed and is presently unemployed.
[6.]
As a result of the accident the plaintiff
has sustained the following injuries:
6.1
Lacerations to the upper limb;
6.2
A fracture of the pelvis;
6.3
A dislocation of the right hip;
6.4
A fracture
of the left femur.
[7.]
After the accident the plaintiff was taken
by ambulance to Kwa-Mhlanga hospital where she was admitted and
treated. At the aforesaid
hospital, the following treatment was
administered, lacerations were cleaned and sutured, the fracture on
the pelvis was treated
conservatively, the dislocation of the right
hip was reduced under sedation and the fracture on the left femur was
treated by way
of open reduction and internal fixation. She was
discharged from hospital on 2
nd
February 2011.
[8.]
The
sequelae
of the injuries sustained include considerable pain and suffering as
a result of symptoms emanating from her pelvis, right hip
and left
femur.
[9.]
The plaintiff commissioned various expert
reports dealing with the injuries she sustained and the
sequelae
thereof while the defendant did not
commission any such reports. The parties agreed that the contents of
the various expert reports
would stand as evidence in respect of what
such reports contained and the conclusions that flowed from such
reports.
[10.]
Dr Geoffrey Read, the orthopaedic surgeon,
examined the plaintiff on 23 April 2013, and compiled a report.
According to Dr Read,
if the patient attends to the treatment
recommended her future disability should be improved. Should she find
employment in the
future, she would be best suited to a sedentary or
semi-sedentary type work. He opined that although the plaintiff has
certificate
courses in security training, this type of work will not
be suitable for her in the future. The plaintiff will require a
conservative
treatment consisting of analgesics, anti-inflammatory
and physiotherapy, and the removal of internal fixatives from the
left femur.
Dr Read concluded that although the plaintiff may suffer
some degree of impairment, none of these constitutes serious injury
and
therefore she does not qualify under the 5.1 Narrative Test. No
permanent disability is indicated.
[11.]
According to the reports compiled by Lance
Marais, an industrial psychologist, on 24
th
March 2015 and an updated one prepared on 8
th
April 2015, the plaintiff will not be able to perform work as a
security guard and is more suited for sedentary and semi-sedentary
type employment. She will retire at the age of 60 years. He
concluded that the plaintiff is rendered less competitive, due
to a
loss of occupational choices, in comparison to the choices available
to the uninjured individuals of similar age and level
of education.
The plaintiff could have performed work as a security guard or
another type of employment that fell within the semi-skilled
occupational group, pre accident, whereas, post-accident, employment
opportunities in this field has been negatively affected,
especially
in work as a security guard where it is explicitly indicated that no
such employment will be possible.
[12.]
According to Kirsten du Toit, an
occupational therapist, the plaintiff informed her that she has no
ambition of gaining employment
within the security services cluster
in the near future. Ms Du Toit, gave cognizance to the plaintiff’s
pre-morbid vocational
spheres of work as a packer and assistant
teacher. Her knowledge in the security field fall within light to
medium duty work. She
concludes that the plaintiff is not suited to
carry out these previous occupations.
[13.]
Mr Gregory Whittaker, an actuary, prepared
actuarial calculation in respect of the plaintiff’s claim for
future loss of earnings.
These calculations were formulated on the
basis of the two reports prepared by an industrial psychologist.
[14.]
He prepared his calculations using two scenarios
which were both based on the assumptions that the plaintiff would
have retired
at the age 62½. For purposes of an exercise he
had regard to these facts: Plaintiff was in the employ of Hansel and
Gretal
as a cleaner and assistant teacher from March 2010 to July
2010 at a salary of R1 200,00 per month(unconfirmed reports).
[15.]
For the purpose of calculating her loss of earning
capacity on basis I, the first scenario she used the information that
prior to
the accident, the plaintiff worked as a cleaner and
assistant teacher, and that the plaintiff was unemployed as at the
date
of the accident. The plaintiff (if the accident did not occur)
would have earned at the median age for an unskilled worker in the
non-corporate sector i.e. R18 600 per annum. Her earning would have
increased in line with inflation until retirement at the age
of 62½.
Her earnings would have increased in line with inflation only until
retirement at age 62½. The pre-accident
earning values were
calculated at 4 year intervals from 11 January 2011 to 1 July 2015. A
contingency deduction of 5% was factored
into the computation. The
net loss of income is R 68 262.00.
[16.]
The parties were agreed that the plaintiff
did not suffer any past loss of earnings.
[17.]
In respect of future loss of earning capacity, on
Basis II, (pre-morbid) Whittaker calculated the plaintiff loss of
earning capacity
as follows:
Future loss
Value of income
uninjured:
R
391 090,00
Less contingency
deduction 20%:
R 78 128,00
R
312 872,00
[18.]
For the purposes of calculating her loss of
earning capacity on the basis of the second scenario, the following
information was
used:
Ms Makanatleng would have
earned at the minimum wage for a Grade C Security Officer. It has
been assumed that she would have recommenced
working on 1 January
2011. The minimum wage for Grade C Officer has amounted to the
following:
01.01.2011
R30 312 per
annum
01.09.2011
R32 292
per annum
01.09.2012
R34 860
per annum
01.09.2013
R37 320
per annum
01.09.2014
R40 128
per annum
increasing
in line with headline inflation to:
01.06.2015
R40 633
per annum
Basis
II: (pre-morbid) the plaintiff would have earned at a minimum wage
for a Grade C security officer. Her earnings would have
increased
thereafter in line with inflation only until retirement at age 62½.
Future loss
Value of income
uninjured:
R
854 362,00
Less contingency
deduction 20%:
R 170 872,00
R
683 490,00
[19.]
The central dispute in regard to the calculation
of the future loss of earnings related to the employment prospects
which the plaintiff
would have enjoyed but for the injury sustained.
The question is whether the reports of the experts of the plaintiff
have substantiated
the latter contention.
[20.]
The plaintiff’s actuary calculated the value of future loss of
earnings on the basis of scenario I after applying 20%
contingency
deduction (what the plaintiff would have earned at the median
wage unskilled worker non-corporate sector) at
R 381 872,00. On
the basis of scenario II, Mr Whittaker calculated the future loss of
earnings at R 830 507,00, less
contingency deduction of 20%. In
other words what the plaintiff would have earned at the minimum wage
for a Grade C security officer.
[21.]
The defendant submitted that the plaintiff’s
loss of earnings should not be calculated on the basis of a
methodology in scenario
II, in view of the fact that she never worked
in the security cluster, which is the basis on which the calculations
in scenario
II were made. She argued that although the plaintiff
acquired a Grade C security certificate on 19 October 2007, she has
not sought
work in that field.
[22.]
In this regard, she referred to the report
of Ms Kirsten du Toit which stated that “
despite
having studied within the security field of expertise, Ms Makanatleng
has never gained experience within this line of work,
she stated
having studied as she wanted to expand her knowledge. Ms Makanatleng
noted having no intention of working within the
field of security in
the near future”.
[23.]
She argued that the actuarial calculations of
scenario II were done on the basis of the plaintiff’s past
employment as a packer,
cleaner and assistant teacher which are areas
that fall within the median duty capacity. She contended that
according to Ms du
Toit, following future consecutive and surgical
intervention the plaintiff should be able to perform duties which do
not involve
strenuous physical demands.
[24.
]
She further submitted that the plaintiff was
furnished with a section 17(4) certificate which will enable her to
attend to the treatment
referred to in Dr Read’s report and
that according to the occupational therapist she would have continued
working as an unskilled
worker until retirement age.
She
argued with reference to the occupational therapists report that the
plaintiff, as an unskilled worker had reached career ceiling
and
earning potential prior to the reported accident. She accordingly
argued that an amount of R381 131.00 is an appropriate
award for
future loss of income. For this submission she referred to
Heese
obo Peters v Road Accident Fund 2012(6) SA 496(WCC).
[25.]
In my opinion the reference to
Heese
obo Peters
is misconceived and that
case does not provide authority for the propositions which counsel
sought to advance. In
Heese obo Peters
the plaintiff, a 51 year old German national was injured in a motor
vehicle accident in South Africa, as a result of which he was
brain
damaged and rendered completely unemployable. His claim for loss of
earning capacity was refused on the ground that his earning
capacity
was kept alive through illegal conduct and public policy would not
allow the benefit of compensation for such loss.
25.1
This is not the situation in this matter,
there is no suggestion that the plaintiff’s earning capacity
was in any way illegal.
She attended and successfully completed a
course in security training. The fact that she never used her
qualification as a security
officer to earn an income was because of
her choice to the other job opportunities available to her. It does
not mean that she
would never have used her qualification as a
security officer to find employment in the security industry. After
all this what
she qualified for. As a result of her injuries
she has been rendered unfit to perform work she did before the
accident and
she can no longer work as a security guard which is the
work for which she is qualified. In these circumstances her loss of
earning
capacity must be assessed on the basis of what she would have
earned as a security guard but for the accident. I therefore agree
with the plaintiff’s counsel submissions. But because of the
fact that it is not entirely certain whether the plaintiff would
have
worked as a security guard had she not been injured I would apply a
higher contingency deduction.
[26.]
Plaintiff’s counsel submitted that the
plaintiff’s loss of earning capacity should be assessed on the
basis of the figures
set out in scenario II.
[27.]
Both experts of the plaintiff, the industrial
psychologist and the occupational therapist have certified her not
suited to carry
out work as a security guard. Both opined that the
plaintiff is only suited to do work which would be deemed to fall
within light
to medium duty work, depending on the level of entry
within this field of work. According to Dr Read, the orthopaedic
surgeon the
plaintiff’s chances of earning as a security guard
have been negated by the reported accident. Both orthopaedic surgeon
and
industrial psychologist are agreed that the plaintiff would work
up to the normal retirement age of 60 years. The orthopaedic surgeon
indicated that if the plaintiff takes conservative treatment
consisting of analgesics and anti-inflammatory her symptoms will
improve. According to Dr Read, although the plaintiff has acquired
certificates in security training he does not believe that this
type
of work will be suitable for the plaintiff in the future.
[28.]
I have come to the conclusion that the appropriate
amount to be awarded to the plaintiff in respect of future loss of
earnings should
be an amount of R500 000.00
[29.]
In the result I make the following order:
1.
The defendant is ordered
to make payment to the plaintiff in respect of the plaintiff’s
loss of earning capacity in the amount of R 500 000.00
2.
The defendant is ordered
to pay plaintiff taxed or agreed party and party costs on
the High
Court scale such costs to include:
2.1
The costs of the medico-legal report
of Dr Geoffrey Read;
2.2
The costs of actuarial report of
Algorithm Consultants and Actuaries CC;
2.3
The costs of the medico-legal
occupational therapy report of Alison Crosby Inc;
2.4
The costs of medico-legal industrial
psychological report of Lance Marais;
2.5
The costs consequent upon the employment of counsel.
_________________________________________________
T
D VILAKAZI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE
PLAINTIFF: ADVOCATE (MS)
MTSWENI
PLAINTIFF’S
ATTORNEYS:
JERRY NKELI
& ASSOCIATES INC ATTORNEYS
COUNSEL FOR DEFENDANT:
ADVOCATE (MS)
LIPHOTO
DEFENDANT’S
ATTORNEYS:
DIALE ATTORNEYS
DATE OF
HEARING:
11 MAY 2015
DATED OF
JUDGMENT:
11 JUNE 2015