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[2010] ZAGPPHC 584
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Rabe v Road Accident Fund (18422/08) [2010] ZAGPPHC 584 (17 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 18422/08
DATE: 17
FREBRUARY 2010
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
RABE P
J
........................................................................................................................................
PLAINTIFF
AND
THE ROAD ACCIDENT
FUND
...............................................................................................
DEFENDANT
JUDGEMENT
TOLMAY, J:
Plaintiff was in a
motor car accident on 16 April 2006 after which he instituted a claim
against the RAF. The merits were conceded
by the defendant and a very
limited dispute was placed before me for determination namely the
determination of appropriate deductions
for contingencies on past and
future loss of earnings, and the amount that should be awarded as
general damages. The parties advised
me that they had settled the
claim for past medical and hospital expenses and the defendant has
given an undertaking in terms of
sec 17(4)(a) of the Act.
The expert reports
filed by the plaintiff were handed in by consent and I was informed
that the basis of the calculation of the
actuary regarding past and
future loss of earnings was not disputed only the applicable
contingencies were disputed.
The plaintiff was
the only witness that testified. Defendant called no witnesses.
Plaintiff was working as a senior protection officer,
Grade 6 at SBV
at the time of the accident. His work involved the loading of
Saswitch machines and he carried heavy bags of money
in the execution
of his duties. His work was of a physical nature. He enjoyed his work
and would have preferred to stay in the
security business.
From the expert
reports it seems he suffered the following injuries: a
left-supra-orbital laceration, abrasion of the left forearm,
fracture
of the left clavicle and a tibial plateau fracture of the right knee.
The most serious injuries were the fracture of the
right knee joint
and the fracture of the shaft of the left clavicle. An open reduction
and internal fixation of the right tibial
plateau was performed.
Plate fixation with an L-type plate was performed.
The plaintiff
remained in hospital for 2 weeks. On 5 June 2007 a right knee
arthroscopy was done. Plaintiff also testified that
his shoulder
causes him only mild discomfort at present, but his knee continues to
cause him great discomfort and pain. The pain
in his knee is
experienced on a daily basis. He suffered from disruption of his
sleeping patterns and he has to sleep with a pillow
between his legs
due to discomfort.
He uses panado and
disprins as pain killers. The plaintiff testified that he can’t
run or jog nor can he play rugby any longer.
Before the incident he
jogged and planned to run the comrades. It is clear that his general
enjoyment of life was seriously impaired
as a result of the incident.
The plaintiff
testified that he resigned his work after a dispute regarding a
demotion and a decrease of his salary. His employer
demoted him
because he was after the accident not capable of dealing with the
physical requirements of his job. He was thus not
capable of doing
the physical work required by a Grade 6 guard. After his resignation
he started a business with his pension monies.
The business failed
due to plaintiff's inexperience and youthful ignorance. In March 2008
he joined his brother in his brother's
business, Rabe s Metal
Stitching CC where he assists in the financial and administrative
side of the business. The business is
small but is apparently doing
well. He would have loved to stay on in the security business but is
doing well in his present position.
It was conceded by the defendant
that cue to the plaintiff's limitations it would be harder for him to
compete in the open market.
At the time of the
accident the plaintiff received a basic income of R4 800-00 per month
and in all probability the plaintiff would
have been promoted to
Senior Protection Officer (Grade 7 level) in 5 years time (earning a
basis income of R7 838-00 per month.
At the time of the accident the
plaintiff received R2 200-00 per month as a fringe benefit.
On 1 March 2008. the
plaintiff started working at Rabe's Metal Stitching CC earning a
basis salary of R4 500-00 per month. He does
not receive any fringe
benefit in his present position.
The calculated
capitalised value of losses experienced by the plaintiff as a result
of the incident amounts to R1 227 498-00. as
calculated as follows by
the actuary; this calculation was done without taking into
consideration any contingencies.
PAST AND FUTURE
LOSS OF INCOME
Before the
calculation date
After the
calculation date
Total
Capitalised
value of income as if no incident
R340 098
R2 2378 352
R2 718 450
Capitalised
value of income regarding the incident
R 228 637
R1 262 315
R1 490 952
Capitalised
loss of income as a result of the incident
R 111 461
R1 116 037
R1 227 498
In
Southern Insurance
Association
versus
Bailey
N.O.
1984(1) 98 AD
the
two approaches that can be used to ascertain future loss of earnings
are discussed on p 113 where the following is said by Nicholas
JA:
"One is for
the Judge to make a round estimate of an amount which seems to him to
be fair and reasonable. That is entirely
a matter of guess work, a
blind plunge into the unknown. The other is to try to make an
assessment by way of mathematical calculations,
on the assumptions
resting on the evidence. The validity of this approach depends of
course upon the soundness of the assumptions,
and these may vary from
the strongly probable to the speculative. It is manifest that either
approach involves guesswork to a greater
or lesser extent.”
Continues on page
114 C - D to state:
“
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
“informal guess” it has the advantage of a logical basis.
”
Both positive and
negative contingencies are taken into account by me. The plaintiff is
a young man who will be limited in competing
in the open employment
market as a result of the injury. He resigned from his former
employment due to the demotion and drop in
salary, but I also have to
take into account the fact that he started a business which was
obviously not viable and which resulted
in financial loss. Although
he may not be living his dream he is in a relatively stable
environment and there is no indication
that this business may be at
risk. The business has been doing well according to the evidence and
there is no evidence that he
may lose his job.
In the light of all
the circumstances of this case I apply the contingencies as set out
hereunder:
1.
Past loss of
income:
Pre morbid: R340
098-00 min 7%
…..................................................
R316
291-14
Post morbid: R228
637-00 min
5%
....................................................
(R217
205-20)
TOTAL 1:
….......................................................................................
R
99 085-94
2.
Future loss of
income:
Pre morbid: R2 378
352-00 min 18%
…............................................
R1
950 248-00
Post morbid: R1 262
315-00 min 23%
…...........................................
(R
971 982-60)
TOTAL
2:
.............................................................................................
R
978 265-40
In the premises an
amount of R1 077 351-30 is awarded as past and future loss of income.
General
damages
:
Regarding
general damages for pain and suffering, disability and loss of
enjoyment of amenities of life. I was referred to several
cases
dealing with fractured knees and comparable injuries
inter
alia
Marunga v RAF
2003(5) Corbett & Buchanan E3-8
In
that case an amount of R178 000-00 was awarded which relayed to
today's values amounts to R280 000-00. In the matter of
Kerspuy
v RAF 2002 Vol 5, Corbett & Buchanan
an
amount of R35 000-00 was awarded in today’s terms it would
amount to R56 000-00. In
Titus
v RAF 2003(3) Corbett & Buchanan
an
amount of R80 000-00 was awarded which relayed to today’s terms
amount of R120 000-00. In the matter of
Putuma v
RAF Vol 5 Corbett & Buchanan 2008 E8-13
an
amount of R105 000-00 was awarded, relayed to today’s terms
this amount to R120 000.
In
Southern Insurance
Ltd
versus
Bailey
(Supra) on p 119 F-H
Nicholas
JA said the following regarding the way in which general damages
should be determined:
“
This
Court has never attempted to lay down rules as to the way in which
the problem of an award of general damages should be approached.
”
The
accepted approach is the flexible one described in the often quoted
statement of
Watermeyer JA in Sandler versus
Wholesale Coal Suppliers Ltd
1941 AD 194
at 199:
"The
amount to be awarded as compensation can only be determined by the
broadest general considerations and the figure arrived
at must
necessarily be uncertain
,
depending on the
Judge
s
view of what is
fair in all the circumstances of the case.
”
It is thus clear
that there is no uniform approach in the classification of general
damages. In considering all the evidence as
set out above as well as
the authorities referred to I award an amount of R180 000-00 as
general damages to the plaintiff.
Consequently I make
the following order:
1. The defendant
will provide the plaintiff with an undertaking in terms of the
provisions of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of
1996
.
2. Defendant is
ordered to make payment of the amount of R1 257 351-30 to plaintiff.
3. Interest at a
rate of 15.5% calculated 14 days from date of judgment to date of
payment is awarded.
4. The defendant
is ordered to pay the costs.
R G TOLMAY
JUDGE OF THE HIGH