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
>>
2021
>>
[2021] ZAGPJHC 78
|
|
Monnakhotle v Road Accident Fund (33365/2018) [2021] ZAGPJHC 78 (17 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED.
DATE:
17 May 2021
Case
No: 33365/2018
In
the matter between:
CALVIN
THABO
MONNAKHOTLE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
WILSON
AJ
:
1
The plaintiff (“Mr. Monnakhotle”) sues the
defendant (“the Fund”) for loss caused during a motor
vehicle
collision (“the collision”). The collision took
place at a four-way stop on the Golden Highway to the south of
Johannesburg
on 5 October 2017. Mr. Monnakhotle was a front-seat
passenger in a minibus taxi. The taxi collided with a vehicle which
could not,
apparently, be identified or traced. That vehicle and its
driver were presumably able to leave the scene of the collision
unaided.
Mr.
Monnakhotle’s injury
2
Mr. Monnakhotle was not so lucky. He sustained a compound
fracture of his right tibia and fibula, and was taken to Sebokeng
Hospital.
There, it was determined that Mr. Monnakhotle had suffered
one of the more severe kinds of compound fractures.
3
Dr. Hannes Volkersz, who testified before me to the nature of
Mr. Monnakhotle’s injuries, said that Mr. Monnakhotle had a
class 3b compound fracture on the Gustilo-Anderson scale. Medical
professionals use that scale to grade the severity of bone fractures.
A class 3b fracture is the second most severe class. In laymen’s
terms, a class 3b fracture means that, instead of providing
a
protective layering around the fracture, the haematoma that forms
around the wound has flowed out through a break in the skin,
the bone
is exposed, and the wound has become contaminated.
4
Mr. Monnakhotle apparently received excellent treatment at
Sebokeng Hospital. His leg was appropriately debrided, and a ring
fixator
was fitted to his leg to help the bones set. Serious
infection was avoided. Although Mr. Monnakhotle faced a long period
of convalescence,
his wound was treated as well as it could have been
at the time.
5
Nonetheless, the fracture had so damaged the bones and tissues
of Mr. Monnakhotle’s right leg that it was, in the end, just
over two centimetres shorter than his left leg. The wound has left
Mr. Monnakhotle with sporadic bouts of mild pain. His right
calf
muscles have begun to waste.
6
More importantly, the wound was such that there is a high
likelihood of post-phlebitic syndrome developing. This syndrome is
caused
by damage to the veinous system, which impairs the body’s
capacity to drain metabolic wastes from the tissues surrounding
the
compromised vessels. The syndrome can take up to 13 years to develop
to its fullest extent, but it is exacerbated by long periods
of
standing and walking, or any strenuous physical activity involving
the affected area. At its most severe, post-phlebitic syndrome
can
lead to widespread inflammation, pain and ulceration at and around
the site of the wound that has led to it.
7
Dr. Volkersz examined Mr. Monnakhotle for the first time just
over a year after the accident, on 12 November 2018, and again
shortly
before the trial commenced before me, on 12 May 2021. He
observed that the area of discoloration around Mr. Monnakhotle’s
wound had expanded by about an inch in the two and a half years since
his first examination. This, Dr. Volkersz testified, indicates
a
heightened likelihood of post-phlebitic syndrome. He stated that Mr.
Monnakhotle “will” develop the syndrome, which
I take to
mean that the onset of the syndrome is at least more likely than not.
8
I deal with Mr. Monnakhotle’s injury at this level of
detail because its nature and likely consequences are at the centre
of this case. After the collision, Mr. Monnakhotle claimed
compensation from the Fund. He eventually instituted this action to
recover his damages. The Fund admitted liability for all of Mr.
Monnakhotle’s proven damages. The parties were able to agree
on
what most of these damages were, but the effect of the collision on
Mr. Monnakhotle’s past and future income remained
in dispute.
The
trial
9
The trial proceeded before me on that issue alone. Mr.
Killian, who appeared for Mr. Monnakhotle, informed me that there was
no
appearance expected for the Fund, because it had recently
terminated the mandate of all its private attorneys. The State
Attorney
was formally on record for the Fund, but, according to Mr.
Killian, had only been given instructions to file a discovery
affidavit,
and nothing more. During the trial, Mr. Killian informed
me that, after I had started hearing evidence, the Fund had made an
offer
to settle, which was being discussed. The trial would
nonetheless proceed unless and until an agreement was reached. I have
not
been informed of any agreement.
10
From all of this, it was clear to me that the Fund had a vital
role to play in the proceedings before me, but had chosen not to
participate. The Fund clearly had reservations about the nature and
extent of Mr. Monnakhotle’s claim for loss of past and
future
income. It remains unclear why the Fund did not state what those
reservations were, or at least send a representative to
court to
assist in the calculation of the damages due.
11
The Fund’s defence had, it is true, been struck out by
order of Nkosi AJ on 9 March 2021, but Mr. Killian accepted that this
did not mean that my task in assessing Mr. Monnakhotle’s
damages was in any way a straightforward matter. The calculation
of
damages for future loss of income involves the exercise of
discretion, and requires a degree of moral imagination – or
what Van der Linde J once more bluntly described as “crystal
ball-gazing” (
Chakela v Road Accident Fund
(33599/2015)
[2017] ZAGPJHC 141 (5 June 2017), para 32).
12
In all of this, there is clearly a role for the Fund to assist
the court. The decision not to participate in this case (or
apparently
any other case involving an ordinary claim against the
Fund) is said to be motivated by a drive to save costs by settling
matters
rather than opposing them (see
MT v Road Accident Fund; HM
v Road Accident Fund
[2021] 1 All SA 285
(GJ), para 68). But this
policy cannot sensibly apply in cases, such as this one, where
matters have not been settled by the time
the trial commences. Nor
does it seem to me to be a cost-saving measure where there is room
for a genuine debate about the quantum
due, in relation to which the
Fund could at least make helpful submissions that might result in it
being ordered to pay less than
it otherwise would.
13
In other words, it seems to me that each case has to be
assessed on its own facts. In cases, like this one, where a court is
being
asked to engage in a difficult and inexact calculation of
damages, an appropriate cost-benefit analysis may well favour sending
a representative to court to at least assist it in arriving at a
reasonable award.
Mr.
Monnakhotle’s damages
14
Be that as it may, the action proceeded by default, and I must
determine the award without the assistance of the Fund. At the
outset of the trial, Mr. Killian abandoned Mr. Monnakhotle’s
claim for loss of past earnings. He sought only to persuade
me that
Mr. Monnakhotle’s injury would probably result in a loss of
earning capacity in future, and to motivate for an award
of damages
that would reasonably reflect that loss.
15
I have already summarised the nature and impact of Mr.
Monnakhotle’s injury. Because it was well-treated, the injury
has not
debilitated Mr. Monnakhotle as much as it might have. He is
still expected to have a working life of an ordinary length, and to
retire at a normal age. For the purposes of this case, all of the
experts set that age at 65, which seems to me to be reasonable
in the
circumstances.
16
Mr. Monnakhotle is a pipe-fitter. From the evidence, it seems
that he is quite a good one. This sort of skilled manual work does
not tend to yield secure, permanent long-term employment, but rather
a series of short-term contracts on different construction
projects.
For several years preceding the collision, Mr. Monnakhotle enjoyed
regular, productive and solidly remunerated work.
When each of his
contracts ended, it did not take him long to attract a new one.
Though he was unemployed at the time of his accident,
this seems to
have been because he had chosen not to take up new work in order to
deal with some family affairs that required his
full attention. After
he recovered from the collision, he found work again fairly quickly,
even though he has continued to suffer
from mild sporadic pain, and a
limited range of movement in his right ankle, which has lowered his
productivity.
17
It does not take much imagination to conclude that being a
pipe-fitter is physically demanding. But, if expert evidence of this
proposition is needed, it has been provided ably by Joanne Tarry, an
occupational therapist who testified to the impact of Mr.
Monnakhotle’s injury on his capacity to work. Ms. Tarry
assessed Mr. Monnakhotle’s work capacity by reference the
duties
of a pipe-fitter, as set out in the Dictionary of Occupational
Titles, a professional reference work.
18
Ms. Tarry concluded that the duties of a pipe-fitter
(assembling, laying-out, installing and maintaining pipe systems)
inevitably
involve a great deal of standing, crouching, walking,
fetching, carrying, weight-bearing and so on. Ms. Tarry assessed what
is
required of a pipe-fitter as falling in the high mid-range of the
United States’ Department of Labour’s classification
of
the physical demands of work, which is apparently a fairly standard
scale on which the physical demands of a job are routinely
assessed
by occupational therapists.
19
Having regard to that scale, a pipe-fitter must generally be
able to consistently apply 22 kilogrammes of force to a range of
objects.
In Ms. Tarry’s assessment, after his injury, Mr.
Monnakhotle can only consistently apply 15 kilogrammes of force. Ms.
Tarry
accepted that her assessment showed that Mr. Monnakhotle is
capable of applying up to 25 kilogrammes of force when he exerts
himself,
but Ms. Tarry stated that this level of force could not be
kept up for long, and any attempt to do so in Mr. Monnakhotle’s
state would mean chronic pain and further injury. It is only safe for
him to work consistently at the 15 kilogramme level.
20
The deficit between what Mr. Monnakhotle can do, and what he
is required to do, is currently made up by his employer tolerating a
lower level of productivity, and Mr. Monnakhotle being provided with
ad hoc
assistance from his colleagues at work. This emerged
from the report of Karen Kotze, an industrial psychologist. Ms. Kotze
was
not called as a witness. Her report was confirmed under
affidavit, and Mr. Killian asked that I accept the report into
evidence
on that basis.
21
A court has a discretion, at least in default judgment
proceedings, to receive evidence of damages on affidavit (
New
Zealand Insurance v Du Toit
1965 (4) SA 136
(T)). Where the
evidence sought to be admitted is of an expert nature, that
discretion should, in my view, only be exercised where
the contents
of the report are themselves placed under oath by the expert, and the
report itself clearly lays out a logical structure
of reasoning that
links its factual premises to its expert conclusions. Reports that
are in any way obscure or weighed down by
impenetrable jargon should
not be admitted in this way, because the expert can and should be
called upon to clarify their process
of reasoning by giving oral
evidence.
22
Happily, Ms. Kotze’s report was confirmed under oath,
and set out its process of reasoning and its conclusions clearly and
lucidly. Accordingly, I acceded to Mr. Killian’s request that
Ms. Kotze’s affidavit and report be entered into evidence.
Where Ms. Kotze relied upon what Mr. Monnakhotle told her, this was
confirmed by an affidavit from Mr. Monnakhotle himself.
23
Ms. Kotze confirmed that Mr. Monnakhotle can reasonably expect
to work until retirement, and that his average annual income (at
least in today’s prices) would ordinarily be R232 699.
24
This is not materially different from Mr. Monnakhotle’s
pre-injury income. However, the nature of Mr. Monnakhotle’s
work means that he will have to return to the open labour market in
future to obtain new contracts on a fairly regular basis. The
damage
in this case arises from the facts that he is less productive than he
used to be, that he is more vulnerable to injury,
and that he is a
less attractive prospect on the labour market because of this. The
creeping spectre of post-phlebitic syndrome,
which Dr. Volkersz has
described as a near-certainty, and which is at least a probability,
must also be taken into account. If
that happens to any significant
degree, the impact on Mr. Monnakhotle’s ability to earn an
income will be fairly severe.
25
In other words, because of all of this, Mr. Monnakhotle
probably cannot expect to earn until retirement what he earned before
his
injury.
26
What has been demonstrated, then, is a loss of earning
capacity. It is clear that this is a form of patrimonial loss, and
not a
species of general damages. See
Rudman v Road Accident Fund
2003 (2) SA 234
(SCA) and
Botha v Road Accident Fund
2015 (2)
SA 108
(GP) (see especially paragraphs 14 to 45).
27
Once a loss of earning capacity has been established on a
balance of probabilities, that loss is generally quantified by
actuarial
calculation. The claimant’s notional future income is
first established. In this case, that income (excepting inflationary
adjustments) is the same as his past income. Mr. Monnakhotle is a
pipe-fitter. Although he has a qualification in business management,
he does not expect to do anything other than pipe-fitting for the
rest of his working life.
28
Once a notional future income is established, a “contingency”
is subtracted. A “contingency” is a value that
represents
the vicissitudes of life. Even though we may all hope that our
productive capacity will proceed unhindered to retirement,
this
seldom happens. We get sick. We face unemployment. There are lean
years. Sometimes these years outnumber the plentiful ones.
The
contingency deduction is meant to account for that.
29
The third step is to incorporate the claimant’s injury
into the contingency deduction. Although contingencies happen to us
all, the injury that Mr. Monnakhotle has suffered is, in the usual
course of things, not something that an ordinary person can
expect to
have to deal with. The increase in the contingency deduction is meant
to reflect this. It seeks to quantify the substantially
increased
likelihood that Mr. Monnakhotle’s injury will mean a loss of
capacity, employment and income.
30
The final step is to subtract the claimant’s probable
future income calculated with the increased contingency deduction
from
the probable future income calculated without it. The difference
is the quantum of the claimant’s likely loss.
31
In Mr. Monnakhotle’s case, this exercise was performed
by Mr. Daniel Saksenberg, an actuary who testified to the process of
quantifying Mr. Monnakhotle’s loss. Mr. Saksenberg testified
that awards made in similar cases, and the nature and probable
effect
of Mr. Monnakhotle’s injuries, justified a doubling of the
usual contingency deduction applied to actuarial calculations
of
future income.
32
In other words, if it was not for the accident, Mr. Saksenberg
would have reduced Mr. Monnakhotle’s notional future income
by
15%, to reflect the ordinary contingencies that we are all likely to
face and which are likely to reduce our expected future
income. The
loss of productive capacity caused by Mr. Monnakhotle’s injury,
in Mr. Saksenberg’s view, justified a contingency
deduction of
30%, in predicting Mr. Monnakhotle’s likely future earnings.
The
award
33
On this basis, Mr. Saksenberg testified that Mr. Monnakhotle
can expect to earn R699 072 less before retirement than he would
have done had he not been injured in the collision.
34
I am not bound by this calculation. The cases appear to take
actuarial calculations as generating starting values, to which
adjustments
can then be made (see, in particular,
Southern
Insurance Association v Bailey NO
1984 (1) SA 98
(A), 116G-117A).
This is, at least in part, to recognise the unusually inexact nature
of the exercise a court often performs when
it calculates damages for
loss of earning capacity.
35
A loss of earning capacity does not easily translate into a
precise figure that reflects the actual reduction in income a
claimant
can in future expect. In this case, the loss is latent in
the fact that Mr. Monnakhotle does not have the strength he used to
have.
His residual physical abilities are probably not going to be
enough to sustain him, without appreciable loss of income, until
retirement.
36
Because of the once and for all rule, we cannot wait and see
what loss actually occurs. What is required is a sensible estimate of
how the loss of earning capacity will in future translate itself into
an actual loss of income. The range of reasonable figures
that would
compensate Mr. Monnakhotle for his probable loss of future income is
accordingly quite broad.
37
The problem in this case is that I have been given no basis on
which to make any adjustments to the figure Mr. Monnakhotle has
provided.
38
Mr. Killian very fairly pointed out that the Fund administers
public money, and that I should have regard to that. But it cannot
follow from the mere fact that Mr. Monnakhotle’s award will
draw on public funds that I should adjust the only sum that has
been
placed before me that quantifies his loss in any logical fact-based
manner.
39
The Fund has declined to participate in the proceedings. Mr.
Monnakhotle’s representatives have fully documented the claim.
Oral evidence in support of the claim has been led for the better
part of a day. That evidence shows that the quantum claimed is
at
least reasonable on the facts. I accept that the evidence led is
clear, satisfactory and reliable in every material respect.
40
Accordingly, I do not think it is right to do anything other
than accept the evidence and give judgment accordingly.
41
Mr. Monnakhotle Is currently 34 years old. He faces living the
bulk of his working life with significantly reduced earning capacity
through no fault of his own. The point of the Fund is to insure
people like Mr. Monnakhotle against precisely the kind of reduced
life circumstances he faces as a result of his injury.
42
The Fund has accepted that it must do so in this case. Mr.
Monnakhotle is entitled to what he has proved.
43
There is no reason why Mr. Monnakhotle ought not to be awarded
his costs, including the costs of the experts who testified.
44
Accordingly I give judgment for the plaintiff in the sum of
R699 072 plus interest and costs.
45
My order is attached to this judgment and marked “
X
”.
S
D J WILSON
Acting
Judge of the High Court
This
judgment is handed down electronically by circulation to the parties
or their legal representatives by email and by uploading
it to the
electronic file of this matter on Caselines. The date for hand-down
is deemed to be 17 May 2021.
HEARD
ON:
12 May 2021
DECIDED
ON:
17 May 2021
For
the Plaintiff:
J Killian
Instructed by De Broglio
Attorneys
For
the Defendant:
No appearance