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[2016] ZAGPJHC 289
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M v Road Accident Fund (2217/2014) [2016] ZAGPJHC 289 (29 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 2217/2014
Not
reportable: No
Of
interest to other judges: No
Revised.
In
the matter between:
M
J
Plaintiff
and
ROAD
ACCIDENT
FUND Defendant
JUDGMENT
SATCHWELL J:
INTRODUCTION
1.
Based upon a stated case, this court was asked to determine the
residual working capacity of a road accident victim, plaintiff
in
this matter.
2.
Late in the afternoon of 21 September 2012 a collision occurred
between two motor vehicles in Benoni in one of which plaintiff
was a
passenger. He suffered most severe injuries - facial injuries and
lacerations, partial loss of hearing and dislocation of
an eye,
multiple fractured ribs on both sides of the torso and a diffuse
brain injury.
3.
Two years after the accident the RAF conceded that it was 100% liable
for the damages sustained by plaintiff in this accident.
General
damages have been settled in a substantial amount and the RAF has
tendered an undertaking in terms of section 17(4)(a)
of the RAF Act.
4.
In dispute between the parties remains the quantum of both past and
future loss of income with the RAF maintaining that plaintiff
could
have worked post accident and prior to this hearing and that he
retains the physical capacity for continued work and that
a higher
contingency should be applied insofar as loss of earnings is
concerned. Plaintiff relies upon certain actuarial calculations
based
upon medical reports and submits that the contingency of 50%
contained within such actuarial calculations should be applied.
FACTS SET OUT IN THE
STATED CASE
5.
Mr J M was born on […] 1984 and was therefore 28 years old at
the time of the accident. He is now 31 years old.
6.
He had commenced working for Stone Tactical Security in February 2010
and remained working for this company at the time of the
accident. H
was employed as a Grade C security officer and earned a very basic
salary of R 4 000 per month.
7.
No less than 13 reports are admitted into evidence by way of this
stated case. I shall not repeat their contents. Suffice it
to say
that they include ophthalmologists (1), maxilla-facial and oral
surgeons (1), plastic surgeons (1), speech language pathologists
and
audiologists (1), clinical psychologists (1) neurologists (1)
occupational therapists (2) industrial psychologists (2).
8.
The physical facts before me which I find to be relevant to the issue
which I must determine are:
a. Plaintiff was employed
at the time of the accident and had been so employed for more than
two years.
b. Plaintiff has been
unemployed since the accident in 2012.
c. Plaintiff’s
injuries are obvious to whomsoever just looks at him or attempts to
engage with him. He is obviously disfigured
and disempowered in a
manner which renders him unlovely to behold and hampered in
communication:
i. According to the
ophthalmologist:
1. There is a cheek scar
below the lid of an eye causing distortion to the face.
2. There are multiple
foreign bodies (glass spicules, blackish particles of what may be
road dirt, whitish particles) to nasally
and temporally and
inferiorly and superiorly.
3. His cornea is peppered
with multiple foreign body particles.
4. There are scattered
intra-stromal scars, pigment atrophy in the iris, displaced pupil,
pupil sphincter ruptures, vitreous thickening,
5. It is recorded that
certain of these observed injuries could be surgically resolved but
this would run the risk of complications
which would not be to
plaintiff’s physical benefit.
ii. According to the
plastic surgeon:
1. There is extensive
scarring involving his face, neck, chest and abdomen as well as
around his reconstructed ear.
2. Notwithstanding
improvements by further surgery, there will always remain serious
disfigurement in these regions.
iii. According to the
speech language specialist:
1. Plaintiff presents
with speech and language difficulties redolent of brain injury which
impacts upon communication demands.
SPECULATION AND
HYPOTHESIS
9.
In most areas of law, we are all enjoined to attempt to determine the
facts and the law applicable thereto. Unfortunately, in
the
sphere of future damages a multiplicity of persons (medical
practitioners, actuaries, lawyers) are required to
assist a judicial
officer to venture into uncertainties, operate on quite unverified
suppositions, make the least wild conjectures,
predict the future
based on very little, take a best guess. In short, these are
extremely unjudicious exercises - based on guesswork
the judge does
some fortune-telling.
10.
Regrettably that is what I am now asked to do.
11.
The stated case tells me that:
a. Plaintiff‘s
sight is affected and there is permanent disability.
b. He is scarred.
c. His communication
skills are hampered both as to word finding, speed of processing
language and formulating his discourse as
well as related
difficulties in understanding. All these are associated with injuries
to both left and front brain areas. He now
has inadequate receptive,
cognitive, expressive comprehension and reasoning skills.
d. Plaintiff suffers from
neurocognitive difficulties in attention and concentration as well as
behavioural lapses.
e. His memory, episodic
and cognitive functioning is impaired.
12.
I note that these findings are not in dispute. Either defendant does
not put up an alternative diagnosis or prognosis
or defendant’s
expert is in agreement with plaintiff’s experts.
13.
The only issue is whether or not plaintiff has any likelihood of
returning to the labour market in some capacity. Plaintiff’s
experts are highly doubtful. One of defendants experts hope for work
as a driver operating a light vehicle but fail to explain
how a brain
damaged individual (with a likelihood of epilepsy) would be able to
obtain the necessary licence.
14.
One fact which was not set out in the stated case, to which I am
entitled to have notice, are the figures offered semi-annually
by the
Stats SA on unemployment in South Africa. I do take into account that
plaintiff belongs to the demographically identified
sector most
vulnerable to unemployment in this country and I do have regard to
the recessionary economic climate when I have regard
to the reality
of any speculation as to the future employment prospects of
plaintiff.
15.
I do not propose to repeat the comments of our courts on ‘informed
guesses’, calculations as to likely return
to employment, the
nature of the contingencies to be considered (early death, loss
of employment, the employment market,
sickness, hazards of life,
previous work history, the economic climate in South Africa, and so
on) and how they should be
applied. I was referred to the
judgment of Moshidi J in
Gordon Gwaxula v RAF
Case 09/418
which usefully reminds one of judicial approaches to these issues.
FINDING
16.
In this day and age, a man of minimal or no skills other than use of
his body to provide security services operates in
a most vulnerable
sector of the employment market. A man who is physically unsightly is
obviously less likely to be employed. One
who is discovered to be
brain damaged immediately upon attempts at communication is most
unlikely to obtain employment. A person
whose entire make up
(cognitive, communicative, expressive, behavioural) is now erratic
and unreliable is virtually entirely unlikely
to obtain let alone
retain employment.
17.
This was a man who was in employment. That his employer closed down
after his accident and whilst he was still undergoing
treatment
(according to the reports) does no more than indicate his innate
vulnerability in retaining employment in difficult economic
times.
But he has a work history, without his injuries and incapacities
there is nothing to indicate that he would not have continued
working
within that industry.
18.
It is my view that the contingencies in respect of his future earning
capacity should not be assessed as high as 50%.
That is not how he
presented prior to the accident. It is the accident and its sequelae
which have created his current difficulties.
There is no indication
of ill health or being workshy prior to the accident. Accordingly, I
would deduct only 30% in respect of
contingencies in relation to his
claim for future earnings.
19.
Regrettably my file does not contain the report of either actuarial
report which the stated case [in paragraphs 33 and
35] claims to
exist. I do not myself propose to do the arithmetic which will now
require to be done. The parties may prepare an
order to be made by
myself within the next two weeks based on plaintiff’s actuarial
calculations in respect of past loss
of earnings and based on
plaintiff’s actuarial calculations in respect of future loss of
income.
20.
Such order will obviously deal with those matters which have been
settled – merits, general damages, an undertaking
-as well as
past loss of earnings and future loss of earnings. On the opinions
set out in the reports of the medical practitioners,
a Trust must be
formed for the benefit of plaintiff – the costs of
establishment and administration to be borne by the RAF.
21.
A ruling is made that the appropriate order be prepared as a matter
of urgency since I will not be sitting in this court
subsequent to
the Friday 9
th
September 2016.
DATED AT JOHANNESBURG
29
th
AUGUST 2016
____________________
SATCHWELL
J
Counsel
for Plaintiff: Adv Swart
Attorneys
for Plaintiff: Sonya Meistre Attorneys.
Counsel
for Defendant: Adv Magkate
Attorneys
for Defendant: Nozuko Nxusani Incorporated
Dates
of hearing: 10
th
August 2016.
Date
of judgment: 29
th
August 2016.