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[2021] ZAGPJHC 94
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Masiza v Road Accident Fund (A163/16) [2021] ZAGPJHC 94 (7 January 2021)
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
DIVISION, JOHANNESBURG
CASE
NO: A163/16
1.REPORTABLE:
YES/NO
2.OF
INTEREST TO OTHER JUDGES: YES/NO
3.REVISED
07
December 2020
In
the matter between:
-
BEKITHEMBA
MASIZA
Appellant
and
ROAD ACCIDENT
FUND
Respondent
Delivered:
This
judgment is handed down electronically by circulation to the parties'
legal representatives through email and released to the
court's
library. The date for hand-down is deemed to be 07 January 2021.
Summary:
Appeal – The appellant claiming
delictual damages arising from motor vehicle collision. Expect
evidence – court cannot
not ignore joint expert minute, even if
one of the expert witness did not testify. Admission of inadmissible
evidence – the
appeal court has a duty to hear the matter and
determine admissibility of evidence. Duty of the trial court to
reject inadmissible
evidence when giving judgment, even if there was
no objection to such inadmissible evidence. Hearsay evidence on the
collateral
information from the employer of the applicant and the
expert witness declared inadmissible. Hearsay evidence agreed to in
the
joint minutes admissible.
JUDGMENT
Madiba AJ
INTRODUCTION
[1]
This is an appeal with leave of the court
a
quo
(Khumalo J. presiding) against
certain parts of the judgment delivered on the 23 April 2014. The
issue for determination by this
court is whether t
he
court
a quo
erred in
the approach it adopted in dealing with past loss of earnings
(R181 282.52) and the dismissal of the appellant’s
claim
for future loss of earnings / and or earning capacity.
[2]
A claim for damages was instituted by the
appellant in the court
a quo
as a result of injuries sustained in a motor vehicle collision. He
sustained the following injuries in the collision: -
(a)
Fractured left
clavicle;
(b)
Bruised face;
(c)
Contusion to
the lower back and the right rib area;
(d)
Soft tissue
injury to the right knee and neck; and
(e)
Psychological
stress and trauma.
[3]
Merits were settled at 100% in favour of
the appellant and general damages were resolved on the basis that the
respondent (Road
Accident Fund) shall pay to the appellant the sum of
R150 000.00. An undertaking in terms of
Section 17
(4) (a) of
the
Road Accident Fund Act 56 of 1996
as amended was provided to the
appellant.
FACTUAL BACKGROUND
[4]
The circumstances that led to the launching
of the claim for damages by the appellant are: -The appellant, a
Zimbabwean citizen
born on the 18 April 1981 was involved in a motor
vehicle collision in Limpopo on the 31 May 2008. He was a passenger
in a motor
vehicle when it was involved in an accident caused by the
negligent driving of an insured driver. At the time of the collision,
appellant was an illegal immigrant who secured employment in 2002
with his fellow country man as an assistant boilermaker. He had
no
formal qualifications and earned the sum of R4 500.00 per month.
The appellant passed an equivalent of grade ten at a school
in his
country of birth.
[5]
As a result of the injuries sustained in
the aforesaid accident, the appellant could not cope with the
workload as an assistant
boilermaker and had to look for alternative
employment. He was ultimately employed as a cleaner in a butchery
earning R3 300.00
per month after his business as a vendor
selling tomatoes, was unsuccessful.
[6]
The appellant consulted the following
experts regarding quantification and assessment of his damages claim:
-
(a)
Dr H.B Enslin:
Orthopaedic surgeon
(b)
Dr J.J Viljoen
Neurosurgeon
(c)
Elsabe Krone:
Occupational Therapist
(d)
Dr W.
Pretorius: Industrial Psychologist
(e)
Dr J.D Erlank:
Plastic and Reconstructive surgeon
(f)
Hume and
Morris: Actuary
[7]
The respondent appointed Dr D.A Birell
orthopaedic surgeon, Dr P.C Diedericks Industrial psychologist and
Ntebo E Thembo as its
experts. Joint minutes reports between Ms Ntebo
E Thembo and Ms Elsabe Krone, Occupational therapists and the
Industrial psychologists
Dr W. Pretorius and Dr P. Diedericks were
handed up by agreement between the parties.
[8]
The appellant as well as his expert witness
Dr Pretorius, Industrial psychologist, testified in the court
a
quo.
There was no evidence presented by
the respondent during the trial. The only outstanding issue to be
decided, in the
court a quo
concerned the appellant’s present and future loss of earnings
and earning capacity.
[9]
The appellant partially succeeded in the
court
a quo
in respect of his claim for loss of past earnings in the sum of
R181 282.52. His claim for future loss of earnings was
dismissed.
It is against the order dismissing his claim for future
loss of earnings and/or earning capacity that the appellant
approached
this court with leave to appeal.
CONDONATION APPLICATION
[10]
The appellant applied for condonation for
the late filing of the application for a date of hearing of the
appeal and the late filing
of the record and requests that the appeal
be reinstated. The application was granted considering the interest
of justice and the
fact that it was not opposed.
NOTICE OF AMENDMENT OF NOTICE OF
APPEAL
[11]
The appellant applied to amend the grounds
of appeal to add the ground the court
a
quo
erred in calculating the
appellant’s claims for past and future loss on earnings /
earning capacity based on the report by
Dr P.C Diedericks. It is
common cause that the report did not serve as evidence before the
court
a quo
nor
did he testify during the trial. The other ground which the appellant
wished to include was that the court
a
quo
should have relied on the report by
Dr Willie Pretorius in determine the Appellant’s loss.
[12]
It is trite law that an amendment will be
allowed only in the event that the issues raised have been thoroughly
canvassed in the
court
a quo.
In
Sentrachem BPK V. Wenhold
1995 (4) SA
312
A at 606 B-C
the court held that
where all relevant evidence is before the court of Appeal, the court
ought to decide the case on the real issues
canvassed during the
course of the trial in the court
a quo
,
without placing undue emphasis on the pleadings.
[13]
A reading of the record of the court
a
quo
reveals that the ground of appeal
sought to be added was canvassed and argued and does not amount to
the raising of a new point
of law in this instance. In any event a
new point of law may be raised on appeal on condition that it was
canvassed in the court
of first instance and covered in evidence.
[14]
A court of appeal will accordingly allow an
amendment if it will not be prejudicial to the other party. See
Quartermark Inv. Pty Ltd .V. Mkhwanazi
2014 3 SA 96
SCA at page 103A-D
. The
best interest of justice will, at all times, be considered if an
amendment should be granted.
[15]
I am persuaded that the amendment is in the
best interest of justice and that it will cause no prejudice to the
respondent. In the
circumstances the amendment is granted.
[16]
The court
a
quo
granted the claim for past loss of
earnings and ordered the Respondent to pay to the appellant the sum
of R181 282.52. Following
the order of the court
a
quo
the appellant accepted the payment.
However the claim for future loss of earnings and / or loss of
earning capacity was dismissed
by the court
a
quo
. When leave to appeal the order
dismissing the refusal of the claim for future loss of earnings and /
or earning capacity was launched
by the appellant, he failed to
appeal against the order granted in respect of the past loss of
earnings.
THE PER-EMPTION RULE
[17]
The rule in regard to per-emption is that
if the conduct of an unsuccessful litigant points indubitably and
necessarily to the conclusion
that he deliberately did not assail the
order of the court
a quo
,
he is held to have acquiesced in it. The conduct of such litigant
must be unequivocal and inconsistent with any intention to appeal.
See
Dabner .V. South African Railways &
Harbours
1920 AD 583.
The party
alleging per-emption bears the onus to establish that position.
[18]
The issue in the present matter is whether
the appellant initially not appealing against the order relating to
the past loss of
earnings and accepting payment made in terms of the
order of the court
a quo
should
be regarded as having acquiesced in the said judgment.
[19]
It is apparent from the reading of the
record that the Appellant had intended appealing against the
calculation of the past loss
as determined by the
court
a quo.
In
Minister
of Defence and Others .V. South African National Defence Force Union
and Another 161/11
(2012) ZA SCA 110
,
the court held that the rule of per-emption may be disregarded if it
is in the interest of justice to do so.
[20]
In any event, a person has a right to
appeal a decision he thinks is prejudicial to him unless he has
waived his right to do so
or his conduct is unequivocal and
inconsistent with any intention to appeal.
[21]
I therefore hold that the appellant’s
conduct is not inconsistent with an intention to appeal the court
a
quo’s
judgment on the basis that
it is in the best interest of justice.
EVIDENCE IN THE COURT A QUO
[22]
In a nutshell, the appellant’s
evidence can be summarized as follows: He passed an equivalent of
grade 10 at school and worked
as an assistant boilermaker earning
R4 500.00 per month from 2002 until date of the accident in
2008. He further testified
that he had no formal qualification or
vocational training in line with boiler-making trade. He acquired
knowledge and experience
in his trade over a period of time working
as an assistant boilermaker at his place of employment. His salary
would escalate to
about R6 000.00 – R9 000.00 in the
event they were contracted to do several big jobs during some months.
As a result
of the injuries that he sustained, the appellant was no
longer in a position to perform and work as an assistant boilermaker.
His
evidence was never challenged or disputed by the respondent
during the trial.
[23]
Dr Pretorius testified that the appellant
qualified as a semi-skilled boilermaker and that a salary of
R4 500.00 per month
under his circumstances was not far-fetched
as it was commensurate in the open market for semi-skilled employees.
He based his
conclusion on the appellant’s qualifications,
comparisons to the corporate sector, the Paterson table / levels and
on Koch
Quantum Yearbook and other expert reports submitted. Dr
Pretorius concluded that based on the evidence of the appellant that
he
qualifies to be considered on a scale of a higher level
semi-skilled employee and that the appellant would reach a pinnacle
of
his career at the age 45 years, the same pinnacle of other
semi-skilled workers at an open market as well as in the corporate
sector.
[24]
In a joint minute report Dr Diedericks,
differs with the assertions of Dr Pretorius who regards the appellant
as an unskilled worker
not worthy of earning a salary of R4 500.00
per month as there is no proof to justify the alleged salary. He
further questions
the fact that the appellant could have worked as a
lower level semi skilled worker as at 2002 until the date of the
collision.
[25]
Both experts (Pretorius and Diedericks)
agree that the appellant would struggle to cope with the occupation
of an assistant boilermaker
due to the said accident and would be
expected to cope with sedentary, light and moderate work tasks.
THE JUDGMENT OF THE COURT A QUO
[26]
According to the court
a
quo,
the only contentious issue to be
determined was in respect of the appellant’s present and future
loss of earnings and earning
capacity.
[27]
In considering the evidence presented, in
particularly that of the appellant, the court
a
quo
found that: -
a.
The appellant was a single witness to
the history and circumstances of his employment, and as such his
evidence cannot be trusted.
His evidence was also rejected on the
basis that it had serious discrepancies, inconsistencies,
contradictions and was highly improbable.
b.
The appellant failed to stick to one
version as to why he could not produce his salary envelopes,
c.
he initially denied having gone to his
place of abode after the accident and
d.
during cross-examination he admitted
that he visited his place of residence and could not find his salary
envelopes.
[28]
The court
a
quo
further pointed out the following
discrepancies and inconsistencies in the version of the appellant:
a.
He could not with certainty explain where
he was actually residing and that his employer was a boilermaker from
whom he honed his
trade and experience.
b.
He conveniently mentioned his employer
knowing fully well that the employer was killed in the said accident
and no verification
could be made.
c.
It was strange and suspect that the
appellant worked for a period of six years as an assistant
boilermaker earning the same salary
d.
His explanation as to the grade level he
passed was found to be suspect.
[29]
In rejecting his version about the grade he
passed the court
a quo
noted
that Dr Pretorius, testified that the appellant told him that he
passed an equivalent of grade 10 (i.e Form 3 in Zimbabwe)
and Dr
Diedericks on the other hand mentioned that he told him that he
completed Form 4 an equivalent of grade 11.
[30]
In light of the above the court
a
quo
concluded that the appellant’s
evidence was unreliable. It also found that the other experts’
opinions on the earning
capacity of the appellant were inconsistent
and thus unreliable. It was for this reason that it rejected the
version of Dr Pretorius
that the appellant was a semi-skilled
assistant boilermaker based on the basis that he earned R4 500.00
per month.
[31]
The court
a
quo
further found concerning the issue
of illegality (appellant being an illegal immigrant) will still
pervade plaintiff’s earning
capacity into the future. This
issue is dealt with later in this judgment.
[32]
Dr Diedericks’s recommendation that
the appellant’s past earnings be discounted found favour with
the court
a quo
.
It concluded that the appellant failed to establish that at the time
of the accident, he had an enduring capacity to legal earnings
with a
value that in the future would have potentially exceeded his present
earning capacity.
GROUNDS
OF APPEAL
[33]
The main grounds of appeal are that the
court
a quo
erred in the following respect:-
a.
The court
a
quo
erred in dismissing the appellant’s
claim for future loss of earnings and \ or earning capacity.
b.
The court
a
quo
used an incorrect calculation in
determining the past loss of earning of the appellant.
c.
The court
a
quo
erred in finding that there were
serious discrepancies, inconsistencies and contradictions in the
appellant’s version.
ISSUES TO BE DECIDED
[34]
The issues to be determined in this appeal
is the delictual damages for past and future earnings and / or
earning capacity and the
contingencies to be applied.
SUBMISSIONS AND ARGUMENTS PRESENTED
[35]
We are greatly indebted to the appellant’s
counsel for his in depth submissions which were very helpful. The
respondent was
not represented during the hearing.
[36]
Counsel for the appellant submitted that
the evidence tendered by the appellant was never challenged or
contradicted and that no
witnesses testified on behalf of the
respondent including its expert witness Dr Diedericks, the industrial
psychologist. He argued
that the court
a
quo
should have accepted the
appellant’s evidence.
[37]
The appellant’s expert witness Dr
Pretorius also testified on behalf of the appellant. Counsel for the
appellant contended
that since the Respondent’s expert witness
Dr Diedericks did not testify and was not subjected to any cross
examination his
recommendations are to be rejected. In other words
the opinion of Dr Diedericks should not have been considered and
accepted as
correct.
[38]
Both industrial psychologists on behalf of
the appellant and respondent prepared a joint minute report and as
per their agreement,
submitted it to the court. The argument by the
appellant’s counsel is that despite Dr Diedericks having agreed
to the joint
minute, he was supposed to have testified to support his
views in that report.
[39]
My view is that the court cannot simply
ignore a joint minute for the reason that its author did not testify.
The joint minute report
agreed upon constitutes admissible evidence.
See
Thomas V. BD Sarens Pty Ltd
(2007/6636).
In any event the fact that
no evidence to contradict the evidence given by appellant and his
expert witness does not mean that the
court is bound to accept such
evidence. See
Nelson .V. Marich
1952 (3)
SA 140
A.
[40]
The parties’ Industrial Psychologists
could not agree on the basis to be used in the calculation of past
and future loss of
earnings. The recommendations of Dr Diedericks
held sway in the court
a quo
and thus the basis of calculating the past loss of earnings of the
applicant by Dr Pretorius was rejected.
[41]
The bone of contention in the court
a
quo
seems to be; whether the appellant
should be classified as a semi-skilled employee in the boiler-making
industry and deserving
to earn a salary of R4 500.00 per month.
Dr Pretorius thinks so while Dr Diedericks has a different view.
[42]
The appellant could not provide any proof
of his earnings, Dr Diedericks applied the comparison and upper
quartile earnings of an
unskilled worker which drastically differs
with Dr Pretorius who held that appellant was a semi-skilled worker
and an assistant
boilermaker and should be treated as such. It was
contended on behalf of the appellant that the court
a
quo
erred in finding that the
appellant’s evidence was inconsistent and contradictory despite
no contrary testimony by the Respondent
or its witnesses was before
the court
a quo.
Counsel
for the appellant further submitted that the court
a
quo
failed to consider that the
appellant was employed as an assistant boilermaker but granted a
claim for past loss of earnings based
on 15% contingency factor as
opined by Dr Diedericks’ basis of calculation. His further
submission is that the 15% contingency
factor should be deducted from
the actuarial calculation in determining appellant’s past loss
of earnings.
[43]
The appellant submitted that the court
should have found that a higher than normal post morbid contingency
be applicable regard
having been had to the appellant’s
earnings of R4 500.00 per month and his skill as an assistant
boilermaker.
[44]
My view is that, proof of earnings will be
a determining factor in calculating loss of earnings and in the
absence thereof the experience
and type of work performed by the
employee will be of great assistance as it could be compared with an
employee of similar skill
and experience.
HEARSAY EVIDENCE
[45]
The appellant’s counsel contended
that the evidence tendered by Dr Pretorius included hearsay evidence
relating to the collateral
information obtained from the appellant’s
current employer and reports of other appellant’s expert’s
witnesses
on appellant’s diminished work capacity. The
appellant argues that such evidence was not objected to and that the
respondent
even cross examined on it. Besides conceding that indeed
the said evidence amounted to hearsay, the submission is that the
parties
in the court
a quo
agreed
that the court should take cognisance thereto.
[46]
The principle of the law is that, where in
an appeal it appears that inadmissible evidence has been admitted at
the trial without
an objection, it is the duty of the appeal court in
a civil case to rehear the case and determine for itself on the
admissible
evidence whether the decision of the court
a
quo
was correct.
See
President of the Republic of South Africa and Others v South African
Rugby Football Union and Others
2000
(1) SA 1
CC pp 37 – 38 para. 61 – 66.
[47]
Where inadmissible evidence has been
admitted with or without objection, it is the duty of the trial court
to reject it when giving
judgment and if it has not done so, it will
be rejected on appeal, as it is the duty of the court to decide
matters on legal evidence
only. A party may however by his conduct at
the trial, be precluded from objecting to such evidence. See
Writing
of trials by a judge alone Phipson 8
th
Edition, page 673.
[48]
Although the court
a
quo
did not expressly pronounce that
the parties did agree it took cognisance thereof (inadmissible
evidence). It is apparent that
in making its finding the court
a
quo
considered the collateral
information of witnesses.
[49]
In dealing with the reliability or
otherwise of the appellant the court
a
quo
held as follows:
“
The
evidence of the unreliability of Plaintiff’s evidence was
unquestionably remarkable. Apparently even the information that
the
other experts, besides Dr Pretorius and Diedericks, based their
assessment on to determine the nature, extent and effect the
accident
had on Plaintiff’s capacity to earn as presented in their
reports was inconsistent and discrepant”. (In paragraph
21
thereof)
[50]
In rejecting Dr Pretorious’ hearsay
evidence the court
a quo
in paragraph 20 of its judgment held that: -
“…
The
court also has a problem with the hearsay evidence by Dr Pretorius on
the status and environment of the present work of the
Plaintiff that
he introduced through his testimony and was not adduced by the
Plaintiff”
[51]
I am of the view that considering the
above, it could not be concluded that the parties in fact agreed that
the learned judge in
the court
a quo
should take cognisance of the hearsay evidence tendered.
[52]
Accordingly, I find that the hearsay
evidence on collateral information obtained from appellant’s
current employer and the
appellant’s expert witnesses’
reports other than those agreed upon in joint minutes are declared
inadmissible.
[53]
Having said that, and having considered the
admissible evidence and joint minutes reports of the industrial
psychologists and occupational
therapists, I am of the view that
appellant’s work capacity diminished as a result of the
injuries sustained in the collision.
ANALYSIS AND LEGAL PRINCIPLES
[54]
In essence, the crisp issue to be
determined in this appeal relates to the basis on which the court
a
quo
calculated or should have
calculated past and future loss of earnings / earning capacity and to
make a determination on the contingencies
to be applied to the
pre-morbid and post-morbid scenarios. There is no doubt that the
appellant suffered serious injuries in the
accident.
[55]
The record and the evidence tendered in
this matter, clearly reveal that the appellant was employed at a
boiler-making environment
and as an assistant boilermaker earning
R4 500.00 per month. The argument that there was no proof that
he was not earning
the said amount is unsustainable more particularly
when regard is had to the concession by Dr Diedericks in this regard.
The expert
witness conceded that it was possible that appellant could
have earned R4 500.00 per month.
[56]
The view by Dr Diedericks and the finding
of the court
a quo
that appellant’s version be rejected on the basis that there is
no proof of earnings (R4 500.00 per month) despite no
contrary
evidence to that effect is of no moment. The court
a
quo
actually acknowledged and accepted
that the appellant was indeed employed and determined his past loss
of earning on 15% contingency
following Dr Diedericks view that the
salary of R4 500.00 per month was exceptionally high for an unskilled
assistant boilermaker
such as the appellant. Thus the argument that
the appellant was not employed falls to be rejected.
[57]
The court
a
quo
having determined the past loss of
earnings, I with respect, fail to understand the rationale of
dismissing the appellant’s
claim for future loss of earning and
/ or earning capacity. Dr Diedericks indeed made a calculation on
future loss of earnings
of the appellant. Accepting Dr Diedericks
calculation on past loss of earnings and rejecting his calculations
on future loss of
earnings while Dr Diedericks used the same basis on
both calculations seems to be problematic and unjustifiable.
[58]
Simply rejecting the appellant’s
evidence on the basis that he was the only witness as to the
circumstances of his employment
history and some contradictions and
inconsistencies, is according to me, not enough.
[59]
In
S .V. Sauls
and Others
1981 3 SA 172
A,
the court
held that there is no rule of thumb test or formula to apply when it
comes to the consideration of the credibility of
a single witness.
[60]
The court should weigh evidence of a single
witness and should consider its merits and demerits having done so,
should decide whether
the truth has been told despite its short
comings or defects or contradictions in the evidence.
[61]
In
S .V.
Mkhole
1990 (1) SACR 95
(A),
the court
held that, contradictions per se do not lead to the rejection of a
witness’ evidence, they may simply be an indication
of an
error. Not every error made by a witness affects his credibility.
[62]
In view of the appellant’s failure to
state with certainty whether he did go to his place of abode or not
after the accident
to check on his salary envelopes could not have
materially affected his credibility to the extent that it warranted a
credibility
finding against him.
[63]
Despite the appellant being a single
witness as to the history and circumstances of his employment and
some contradictions and inconsistencies,
I find that such
contradictions, inconsistencies and discrepancies were immaterial and
did not negatively affect his credibility.
APPELLANT AN ILLEGAL IMMIGRANT
[64]
It was contended on behalf of the
Respondent that the appellant being an illegal immigrant in South
Africa had to justify the consideration
of his illegal earnings which
he failed to do.
[65]
A litigant has to raise the issue of
illegality in his pleadings and can therefore not rely upon and argue
it as a dispute not contained
in his pleadings. The submission by the
counsel for the Respondent that appellant’s alleged income
should not be considered
at all as it was illegal was correctly
rejected by the court
a quo
as misguided. To dispute appellant’s alleged salary of
R4 500.00 per month on the basis that as an illegal immigrant
would not get the same opportunities like South Africans and would
therefore earn less without any evidence to that regard is
unfortunate and should accordingly be rejected as it is factually and
legally incorrect.
[66]
Equally so, that a court should take
judicial notice that foreigners get less opportunities and earn less
solely based on the notion
that they are illegal immigrants is not
supported by any fact or evidence in this matter and cannot be
accepted. The notion that
his being illegal in South Africa will
pervade appellant’s earnings into the future without any proof
thereof is unfortunate.
CALCULATION OF PAST AND FUTURE LOSS
OF EARNINGS
[67]
Dr Diedericks based his calculation on the
medium and upper quartile earnings of an unskilled worker in the
non-corporate sector
in the labour market. Whereas Dr Pretorius
calculations are based on a higher level of a semi-skilled employee
thus relying on
appellant’s qualifications as compared to
corporate sector, Paterson table and on Koch Quantum Year book as
well as the market
rates for a semi-skilled employer. There is no
dispute that the appellant was employed and that he has a claim for
past loss of
earning and earning capacity.
[68]
It is not contested that the injuries
sustained by the appellant have compromised his ability to perform
the work of an assistant
boilermaker as he had done pre-accident.
[69]
Although the appellant is able to cope with
sedentary physical parameters of his current work, he has not been
trained to perform
any other work of a physical nature. The appellant
would therefore be disadvantaged to compete fairly in the open
market.
[70]
In view of the evidence presented by the
appellant on his claim for future loss of earnings and/or earning
capacity, I conclude
that a case for a claim for future earnings is
justified under the circumstances and should not have been rejected
in the court
a quo.
FUTURE LOSS OF INCOME
[71]
When claiming for future loss it is to be
proved on the balance of probabilities that the claimant will suffer
financial loss or
diminution of his income. There must be proof that
the reduction in earning capacity gives rise to pecuniary loss. See
Rudman .V.
Road Accident Fund
2003 (2) SA 234
SCA.
[72]
In
Sandler .V.
Wholesale Coal Suppliers Ltd 1941 A 194 it was stated that: -
“
It
is no doubt exceedingly difficult to value damage in terms of money,
but that does not relieve the court of a 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.”
[73]
As aforementioned the issue is really which
contingencies are to be applied under the circumstances.
“
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.”
See AA Mutual Insurance .V. Van
Jaarsveld
1974 SA 729
(A).
[74]
In determining the probabilities, the
courts usually allow for certain contingencies from deducting a
certain percentage from damages
awarded. The court has to decide what
is fair and reasonable on the information provided. It is stated in
The
Quantum Year Book 2018 by Robert
Koch at page 114
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 the prerogative of the court and there are no
fixed rules as
regards general contingencies.”
NORMAL CONTINGENCIES
[75]
The normal contingencies acceptable are 5%
for past losses and 15% for pre-morbid future income.
[76]
In
Southern
Insurance Association Ltd .V. Bailey No
1984 1 SA 98
(A) at 113
G
the court held that:-
“
An
enquiry into damages for loss of earnings capacity is of its nature
speculative, because it involves a prediction to the future,
without
the benefit of the crystal balls, soothsayers, augurs or oracles. All
the court has to do is to make an estimate, which
is often a very
rough estimate of the present value of the loss.”
[77]
As aforesaid the calculation of quantum for
future loss of earning capacity is not a matter of exact mathematical
calculation. Despite
all this hurdles, the court has to make an award
which is fair and reasonable based on the evidence presented.
CALCULATIONS BY HUMAN AND MORRIS
ACTUARIES
[78]
The past and future loss of earnings has
been calculated by Human and Morris Actuaries. No contingencies have
been applied by the
actuaries and are left for the court to
determine. Both favourable and adverse contingencies have to be taken
into account. Bearing
in mind that contingencies are not always
adverse, the court should in exercising its discretion lean in favour
of the appellant
as he would not have been in the position where his
income would have to be the subject of speculation if the accident
had not
occurred.
[79]
I find that there is no reason why the
normal contingencies i.e. 5% for past loss of earnings and 15% for
future loss of income
should not be applicable regard being had to
the evidence presented.
[80]
As per the actuarial report, the
calculations are based on the information which indicates that the
appellant will no longer be
able to earn an income as an assistant
boilermaker due to the sequelae of the collision he was involved in.
Based on the evidence
tendered including the joint minute reports by
Occupational Therapists and Industrial Psychologists, a higher
contingency of 50%
is justified under the circumstances of this
matter. In consideration of the factors such as limited job choices,
decreased competitiveness
and work performance as well as the need
for treatment and accommodation at the place of work, a higher than
normal post morbid
contingency had to be applied. Both experts (Dr
Pretorius and Dr Dierdericks) proposed a higher contingency to be
considered due
to not being able to determine with a level of
certainty the potential future impact of the accident. My view is
that 50% contingency
deduction should be applied.
[81]
Accordingly, the delictual damages for
future earnings and earning capacity should have been calculated on
the basis of 5% for past
loss of earnings, and 15% for future
uninjured loss of income with a 50% deduction contingency for future
loss of income. My finding
is therefore that the contingency
deduction of 5% for past loss of income and 15% for future loss of
earnings with a 50% contingency
deduction for future loss of earnings
will be fair and equitable in the circumstances of the present case.
[82]
The court
a
quo
therefore erred in dismissing the
appellant’s claim for future loss of income and relying on Dr
Diedericks contingency calculations.
[83]
NET
FUTURE INCOME
I
accept as fair and appropriate the proposed amount of loss to be
awarded to the appellant as reflected in the actuarial report
of
Human and Morris Actuaries (
BUNDLE
E page 116)
as follows: -
UNINJURED
INJURED
NET
PAST
INCOME
CONTIGENCIES
272 2229.00
37 700.00
238 529.00
NET
PAST INCOME
272 229
33 700
238 529
FUTURE
INCOME
CONTIGENCIES
NET
FUTURE INCOME
1 348 182.00
1348 182
671 535 0
671 535
676 647 0
676 647
TOTAL
1 620 411
705 235
915 176
[84]
Taking into account the contingencies as
determined and as per the finding on contingencies aforementioned,
the following calculations
are fair and equitable.
Past Loss of earnings
R272 229 – 33 700.00
=
R238 529.00
Minus
5% contingency
R11 926.45
Past
Loss
R226 602.55
Minus
past loss
Already
paid
R181 282.52
Total
past loss
R45 320.03
FUTURE LOSS OF INCOME
Future Uninjured
Income
R1 348 182.00
Minus 15%
contingency
R202 227.30
Total Future Uninjured Income
R1 1459 954.70
Future Injured Income
R671 535.00
Minus 50%
contingency
R335 767.50
Total Future Injured Income
R335 767.50
Future Loss of Income
Future uninjured
income
R1 145 954.70
Less: Future Injured
R335 767.50
Total Future Loss
R810 187.20
TOTAL Loss
R45 320.03
ADD TOTAL FUTURE Loss
R810 187.20
Total loss
R855 507.23
CONCLUSION
[85]
Having considered the circumstances and
evidence presented in this matter, the appeal is upheld. In the
circumstances the appellant
is awarded the following amounts for
damages:-
Past Loss of Income
226 602.55
(181 282.52 + 45 320.03)
Future Loss of Income
R810 187.20
TOTAL Loss
R1 036 789.55
[86]
Accordingly, and in view of the above, I
propose the following order: -
ORDER
1.
The appeal is
upheld with costs.
2.
The judgment
of the court
a
quo
is set
aside and replaced with the following: -
2.1
The
appellant’s claim for past and future loss of earnings are
granted.
2.2
The
Respondent is ordered to pay to the appellant the following amounts
for damages: -
Past Loss of Income
R45 320.03
Future Loss of earnings
R810 187.20
TOTAL Loss
R855 507.23
3.
Interest on
the amount of R855 507.23 at the rate of 10.25% per annum
calculated 14 days from date of judgment to date of payment.
4.
The total
amount is payable to the appellant’s attorneys of record’s
trust account within 14 days from the date of judgment,
details
being: -
SAVAGE JOOSTE & ADAMS INC.
PRETORIA
Nedbank NEDCOR – ARCADIA
ACCOUNT TYPE
TRUST ACCOUNT
BRANCH CODE:
1[…]
ACCOUNT NO:
[….]
MADIBA AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
I agree
MAKUME J
Judge of the High court
Gauteng Division, Pretoria
I agree
MOLAHLEHI J
Judge of the High Court
Gauteng Division, Pretoria
REPRESENTATION
FOR THE APPELLANT: ADV. P.J
VERMEULEN SC
INSTRUCTED BY: SAVAGE JOOSTE &
ADAMS INC.
ATTORNEYS FOR RESPONDENT:IQBAL
MAHOMED ATTORNEYS
NON REPRESENTATION ON APPEAL
HEARD ON: 05 Agust 2020
DELIVERED: 07 January 2021
APPELLANT’S ATTORNEYS
SAVAGE JOOSTE & ADAMS INC.
CNR BROOKLYN & JUSTICE MAHOMED
STREETS
MENLOPARK
PRETORIA
E
MAIL:
rghnotices@savage.co.za
REF: Mr Hayes/M Havemann/RP2733
TEL: 012 452 8200
AND TO:
IQBAL MAHOMED ATTORNEYS
ATTORNEYS FOR RESPONDENT
262 VERMEULEN STREET
PRETORIA
REF: M20198/P Moonsamy/RAF/DM
AND TO:
ROAD ACCIDENT FUND