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[2015] ZAGPJHC 159
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Pierre v Road Accident Fund (44981/2013) [2015] ZAGPJHC 159 (11 June 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
44981/2013
DATE:
11 JUNE 2015
In
the matter between:
BEDEMAN
JACQUES
PIERRE
........................................................................................
PLAINTIFF
And
ROAD
ACCIDENT
FUND
...............................................................................................
DEFENDANT
J
U D G M E N T
MALI AJ
[1]
This is a claim for future loss of income.
[2]
In the particulars of claim at paragraphs 7
to 8.4 the plaintiff alleged as follows:
“
7.
As a result of the driving of the insured motor vehicle, the
plaintiff sustained the following injuries:
7.1. Multiple
fractures of the right ankle and foot and subsequent amputation of
the right foot.
(“the
injuries”)
8. As a
consequence of the injuries sustained by the plaintiff:
8.1. The
plaintiff had to undergo medical treatment and will in future have to
undergo medical treatment, requiring accommodation,
medical good and
services as well as assistance and assistive devices;
8.2 The plaintiff
was and/or is and/ or will continue to be subjected to pain,
suffering, discomfort disfigurement, inconvenience,
emotional impact
due to the injuries, disability and loss of amenities of life;
8.3. The
plaintiff was unable to attend to his income earning activities,
resulting in a loss of income;
8.4. The
plaintiff has suffered a partial alternatively complete destruction
of his income earning capacity”.
[3]
At the time of accident the plaintiff was
employed by the First National Bank (“FNB”) as a Data
Specialist for a period
of approximately six (6) years on a contract
basis. He was unable to work for a period of 9 (nine months) after
the accident.
He currently works for FNB as a Business
Intelligent Analyst. When the accident occurred the plaintiff was
earning a monthly salary
of R60 850.00
[4]
In January 2012 the plaintiff returned to
his position at work and continued to earn the abovementioned salary,
however during this
time he received no annual bonus or salary
increase. During 2013 he was appointed on a permanent basis due to
his skills and expertise.
In July 2013 he was promoted to the
position of a Business Intelligence Manager and was later employed as
a Business Intelligence
Analyst.
THE ISSUES FOR
DETERMINATION
[5]
At the commencement of the trial the issue
of liability had already been settled between the parties. The basis
of settlement is
that the merits of the action have been apportioned
75%/ 25% in favour of the plaintiff. Therefore the defendant will be
liable
for 75% of the plaintiff’s proven damages.
[6]
General damages have been agreed in the
amount of R400, 000.00 per apportionment or R300, 000.00 post
apportionment. It was also
agreed that the defendant would furnish to
the plaintiff an undertaking in respect of future medical expenses in
terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
(“
section 17(4)(a))
.
Consequently, the only issue for
adjudication in this trial is in respect of future loss of income and
the determination thereof.
The parties further agreed that no oral
evidence was to be led, and that issues in dispute were to be
determined by the court solely
on the evidence contained in the
various experts’ reports filed by the plaintiff. The defendant
did not file medico-legal
reports.
PROSPECTIVE LOSS
OF INCOME
[7]
The
plaintiff must prove that he will probably suffer financial loss or
diminution of his income. In
Sandler
v Wholesale Coal Suppliers Ltd
[1]
it was stated that:
“
It
is no doubt exceedingly difficult to value the damage in terms of
money, but that does not relieve the Court of the duty of doing
so
upon the evidence placed before it. This is a principle which has
been acted on in several cases in South African Courts”.
[8]
In
Rudman
v Road Accident Fund
[2]
, the Court said:
“
There
must be proof that the reduction in earning capacity indeed gives
rise to pecuniary loss.”
[9]
In
Southern
Insurance Ltd v Bailey NO
[3]
the following was said:
“
In
a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the
first
approach offers any advantage over the second. On the contrary, while
the result of an actuarial computation may be no more
than an
“informed guess”, it has the advantage of an attempt to
ascertain the value of what was lost on a logical basis;
whereas the
trial Judge’s “gut feeling” (to use the words of
appellant’s counsel) as to what is fair and
reasonable is
nothing more than a blind guess. (cf Goldie v City Council of
Johannesburg
1948 (2) SA 913
(W)
at 920.)”
[10]
It is evident from the reports of the
experts that the plaintiff suffered an amputation of the right foot
and currently still suffers
intense pain and requires the use of
prosthesis. There is a high possibility that plaintiff will have a
revision of the amputation.
The reports further state that the pain
and suffering endured by the plaintiff will have a negative
psychological impact on him
and will limit his career opportunities.
This is because amongst other issue his partially amputated right
ankle lost most of its
functions, he suffers ongoing headaches
relating to the minor head injury that he sustained and presents
symptoms of depression.
Furthermore recently as in 2014 he was not
considered for a promotion to the Head of Department.
[11]
The report of the Occupational
therapist is comprehensive and also notes the following:
“
Plaintiff’s
employment is sedentary in nature and plaintiff is also limited to
sedentary work. In the opinion of his
supervisor his injury
does not limit his ability to do his job. Injury as suffered in the
accident in question has led to subsisting
consequences, affecting Mr
Bedeman’s general functioning in daily life, inclusive of
affecting amenity enjoyment and
capacity
for earning a viable income.
(my
underlining). It is accepted that maintaining of efficacy
levels would relate directly to the conduciveness of his work
tasks
and work environment to his medical condition and treatability as
well as controlling of symptomology, especially considering
that he
at the current time, does present with a neuroma. Deference is made
to the Industrial Psychologists to quantify loss of
earnings suffered
post-accidental and anticipated in future.”
[12]
The
report of the Industrial Psychologist which also took into account
the plaintiff’s workplace feedback; states that the
plaintiff’s
performance was considered excellent
before
(my emphasis) the accident. He was rated as a well above average
performer and one of the top performers by his employer. He had
prospects of being promoted to the Department Head or “IT”
Manager. It was postulated that promotion would likely have
transpired over a period of six to 18 months in the pre-accident
scenario. In this regard
Road
Accident Fund v Guedes
[4]
is
instructive, wherein the following was stated:
“
In
the specialised field in which she works such as Information
Technology (IT), it is not unusual for the outstanding or even merely
competent, young people to make rapid progress, sometimes even
meteoric progress”.
In
casu
the
plaintiff is middle aged, but the industry he is in,
undeniable has upward mobility prospects. As stated
by
his employer the promotion would have transpired sooner in the
pre-accident scenario.
[13]
Having regard to the unchallenged report of
the Occupational Therapist read with the Industrial Psychologist’s
report; I am
satisfied that the plaintiff will suffer future loss of
income. Significantly the Industrial Psychologist reported that
post-accident
the plaintiff’s career progression has been
delayed by two and half years. Furthermore that the plaintiff’s
future
work capacity and employability have been curtailed as he
suffers from lower productivity and emotional difficulties which have
limited and delayed his promotional prospects. In this regard
it was submitted on behalf of the applicant that he is disadvantaged
in the open labour market.
[14]
The defendant disputes that the plaintiff’s
career opportunities will be limited. As indicated above the
defendant did not
submit any expert reports to challenge the
medico-legal reports of the plaintiff. Mr Tonyela, counsel for the
defendant relied
on the plaintiff’s Occupational Therapist’s
interview with the plaintiff’s supervisor. The extract referred
reads
as follows:
“
(i)
he reported that they are happy with his work performance and have
not experienced any difficulties.
(ii) It was
confirmed that he was made permanent in October 2013. This was due to
the reporting that they did not want to let him
go, due to the skill
and the knowledge he retains.
(iii) It was also
indicated that his physical disability will neither advantage/
disadvantage him in securing of promotions”.
[15]
Mr Tonyela relied on the opinion of the
employer concerning the employee at that point in time based on his
then performance. The
opinion of the experts is that with the passage
of time the injuries will increasingly interfere with his employment.
This opinion
is not challenged by the defendant. The employer’s
opinion is not inconsistent with the experts’ opinion as it is
based
on the fact which then presented.
[16]
On the evidence before me, the plaintiff
has satisfactory demonstrated that he will suffer future loss of
income.
CONTINGENCIES
[17]
Contingencies
have been described as the normal consequences and circumstances of
life, which beset every human being and which
directly affect the
amount that a plaintiff would have earned.
[5]
In his book
The
Quantum Yearbook,
Koch states that when assessing damages for loss of earnings or
support it is usual for a deduction to be made for general
contingencies
for which no explicit allowance has been made in the
actuarial calculation…… The deduction is in the
prerogative
of the court. General contingencies cover a wide range of
considerations which may vary from case to case and may include:
taxation,
early death, loss of employment, promotion prospect,
divorce etc.
[18]
Koch refers to the following as some of the
guidelines a regards contingencies:
·
“
Normal contingencies” as
deductions of 5% for past loss and 15% for future loss.
·
Sliding
scale:1/2 % per year to retirement age, i.e. 25% for a child, 20% for
a youth and 10% in the middle age and relies on
Goodall
v President Insurance
[6]
.1978
(1) SA 389.
·
Differential contingencies are commonly
applied, that is to say one percentage applied to earnings but for
the accident, and a different
percentage to earnings having regard to
the accident.
[19]
In the present matter the plaintiff’s
future loss of earning capacity has been calculated by Ivan Kramer, a
fellow of the
Actuarial Society of South Africa as at 7 May 2015. The
basis of the calculation and the assumptions made which were not
challenged
included the following:
Values
below are in Rands
But
for the
Having
regard to
Net
loss
Accident
the
accident
Gross
accrued value of income
0
0
Less
contingency
0
0
Net
accrued value of income
0
0
0
Gross
prospective value of income
10
846 227
10
437 373
Less
contingency
1
627 384
3
131 212
Net
prospective value of income
9
221 843
7
306 161
1
915 682
Total
value of income
9
221 843
7
306 161
1
915 682
Contingency
%
accrued
0.00%
0.00%
Prospective
15.00%
30.00%
[20]
When a court is called upon to exercise an
arbitrary discretion that is largely based on speculated facts it
must do so with necessary
circumspection. In the absence of contrary
evidence, the court can assume that a reasonable person in the
position of the plaintiff
would have succeeded to minimize the
adverse hazards of life rather than to accept them. Both favourable
and adverse contingencies
have to be taken into account in
determining an appropriate contingency deduction. Bearing in mind
that contingencies are not always
adverse, the court should in
exercising its discretion lean in favour of the plaintiff as he would
not have been placed in the
position where his income would have to
be the subject of speculation if the accident had not occurred.
[21]
After considering all the expert’s
opinions I agree with the actuarial calculations of the plaintiff
that the value of the
income but for the accident is R9221 843.00 and
for having regard to the accident is R7306 161.00. The contingency
deductions of
15% for the but for the accident scenario and 30%
for the having regard to the accident will fairly compensate the
plaintiff
for the loss suffered as a result of the accident.
[22]
I accordingly make the following order:
1.
The defendant is to pay the plaintiff a sum
of R2, 315,485.00 (being R1, 915, 682, 00
in
respect of loss of income plus R400, 000.00 in respect of general
damages) minus the apportionment of 25% which gives rise to a
net
award of R1, 736, 614.00.
2.
The defendant is to provide the defendant
with a
section 17
(4) (a) undertaking in respect of future medical
expenses.
3.
The defendant is to pay the plaintiff his
taxed or agreed party and party costs, such costs to include the
costs of both 7 and 8
May 2015.
N.
MALI
Acting
Judge of the High Court of
South
Africa, Gauteng Local Division, Johannesburg
APPEARANCES:
Counsel
for the Plaintiff : Adv D.J Erasmus
Instructed
by : Attorneys
Counsel
for the defendant : Adv D. Tonyela
Instructed
by : Attorneys
Date
of Hearing : 07 May 2015
Date
of Judgment : 11June 2015
[1]
1941
(A) 194
[2]
2003(2)
SA 234 (SCA) at para [11]
[3]
1984(1)
SA 98 (A)
[4]
2006(5)
SA 583 at 589 ( A)
[5]
AA
Mutual Insurance v Van Jaarsveld 1974(4) SA 729 (A)
[6]
1978
(1) SA 389