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2021
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[2021] ZAGPJHC 134
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Monnakhotle v The Road Accident Fund (33365/2018) [2021] ZAGPJHC 134 (17 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case No: 33365/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE:
17 May 2021
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