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[2010] ZAGPPHC 152
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Thwala v Road Accident Fund (23910/09) [2010] ZAGPPHC 152 (11 October 2010)
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NOT
REPORTABLE
I
N
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
No: 23910/09
Date
heard: 06/10/2010
Date
of judgment: 11/10/2010
In
the matter between:
Themba
Blessing Thwala
….............................................................................
PLAINTIFF
and
Road
Accident
Fund
..........................................................................................
DEFENDANT
JUDGMENT
DU
PLESSIS J:
On
8 October 2006 the plaintiff was injured in a motor vehicle accident.
He claims damages resulting from those injuries. The defendant
has
conceded that it is liable for such damages as the plaintiff may
be
found
to have suffered.
It
is not in dispute that the plaintiff has suffered damages in the sum
of R2000 in respect of past medical and hospital expenses.
It is also
not in dispute that the plaintiff will in the future have to undergo
further medical and hospital treatment for his
injuries. In respect
thereof the defendant has accepted liability to furnish to the
plaintiff a certificate in terms of
section 17(4)(a)
of the
Road
Accident Fund Act, 56 of 1996
.
The
defendant does not dispute that, due to his injuries, the plaintiff
has suffered a loss of earning capacity. The quantum of
such loss is,
however, in dispute. Similarly, the defendant does not dispute that
the plaintiff has suffered general damages for
pain, suffering, loss
of amenities of life and the like. The quantum of general damages is
in dispute.
No
oral evidence was led. As evidence the plaintiff handed in, without
objection, certain expert reports that the defendant was
unable to
dispute. I proceed to summarise the facts as they appear from those
reports.
The
plaintiff sustained the following injuries: A blow to the right side
of the head with an open wound that was sutured; a blow
to the right
ear, also with an open wound that was sutured; abrasions on the
forehead and nose; an unspecified injury to the right
shoulder; a
blow on the right knee with an open wound that was sutured; a
fracture of the left radius and ulna. The doctors did
an open
reduction and an internal fixation of the fractured arm but there
were complications and the fractured bones would not
unite. As a
result of the fractured arm and its sequelae, the plaintiff has lost
substantial power in the left hand. He has also
lost rotational
movement as well as pro- and supination. The
use
of his left hand has been limited severely: He finds it difficult to
open, close and unlock doors, to handle eating utensils
and to hold a
cup with the left hand. When he stands, the hand hangs limp. In his
present condition, the plaintiff is unable to
perform physical work
that requires both hands. He will, apart from surgery to remove the
plate in his arm, require reconstructive
surgery to address the
limitations of the left hand. If successful, the surgery will leave
the plaintiff with a nearly normal left
hand. The plaintiff has a 20%
chance of developing dramatic osteoarthritis in his left wrist with
an associated loss of function.
It is not in issue that the injuries
did not affect the plaintiff's longevity nor, assuming the surgery to
be successful, his working
life.
Born
in 1982, the plaintiff was 24 at the time of the collision. Having
failed twice in earlier grades, he passed grade 11 at school
but
failed grade 12. The plaintiff's father passed grade 5 at school and
earns a living by transporting goods with his bakkie.
The plaintiff's
mother had no formal schooling and she is unemployed. His brother is
employed as a paramedic, having done a 6 months
course in that field.
The
plaintiff entered the labour market in 2004 (when he was 22). He
worked as a security guard for six months. In the five months
from
January to May 2005, he worked as a shop assistant in "different
shops". From June 2005 until some time before the
accident, he
worked as an assistant to a fork lift driver. At the time of the
accident he was unemployed: The concern he had worked
for closed
down. He has not worked since the accident but he did receive a
disability grant
The
industrial psychologist whose report was handed in as evidence
expresses the opinion that the plaintiff would, but for the accident,
have followed a career path that, at the age of about 30 to 35 could
have taken any one of three possible directions: But for the
accident, he would have obtained employment as an unskilled worker in
the non-corporate sector of the economy within between six
and twelve
months after he had lost his job. Thereafter he could, as a first
possibility, have continued working as an unskilled
worker in the
non-corporate sector, gradually progressing in income until the age
of 45. From then on he could have received only
inflationary
increases. As a second possibility, the plaintiff could have received
on the job training and could have progressed
to semi-skilled work at
about the age of 30 to 35. In the third place the industrial
psychologist points out that the plaintiff
could have obtained work
in the corporate sector which, on a career path similar to the second
possibility, would have enabled
him to earn a substantially higher
income.
In
an actuarial report before the court, the actuary made three
calculations that he respectively calls "basis 1", "basis
2" and "basis 3". Basis 1 assumes the possible career
path where the plaintiff remains an unskilled worker. Basis
2 assumes
that the plaintiff would have remained in the non-corporate sector
but would have progressed to semi-skilled work. Basis
3, the most
optimistic, assumes a career in the corporate sector progressing to a
semi-skilled worker. I shall refer to the respective
calculations as
basis 1, 2 and 3 as did the actuary.
In
discussions before the start of the trial, the plaintiff contended
for using the actuary's basis 3 to quantify the plaintiff's
loss of
earning capacity. The defendant contended for using basis 1. During
discussions in my chambers I suggested that using basis
2 would
constitute a fair midway. When the trial started I was informed that
the parties have agreed that basis 2 should be used
as a basis for
quantifying the plaintiff's loss of earning capacity. That, however,
did not dispose of the issue: Each party still
contended that
allowance should be made for contingencies before the loss of earning
capacity can be quantified. I proceed to consider
that.
The
quantification of a loss of earning capacity entails essentially two
questions. First, it is necessary to determine how the
injuries
impacted on the plaintiff's earnings from the date of the accident
until the date the determination is made ("past
loss of
earnings"). In the second place it is necessary to determine
how the injuries impacted upon the plaintiff's ability
to earn in the
future, from the date of the calculation to the end of his earning
career ("future loss of earnings").
I
start with the plaintiff's past loss of earnings. Using the report of
the industrial psychologist as a basis, the actuary calculated
the
plaintiff's probable earnings, had it not been for the accident, from
the date of the accident to the date of the calculation
(5 October
2010). In each of the three bases, the actuary arrived at a different
figure. I do not understand that. Having regard
to the report of the
industrial psychologist, 1 would have expected the three figures to
have been the same. Counsel informed me,
however, that they are
content to use the figure in basis 2, R107 066, as representing the
past earnings had it not been for the
accident. The actuary however
did not allow for "general contingencies", unforeseen
negative or positive events that
might have befallen the plaintiff in
the period between the accident and the calculation. In my view the
evidence does not point
to significant positive events that might
have influenced the plaintiff's past earnings had it not been for the
accident. On the
negative side, there is a real possibility that he
might not have obtained work within a year after losing his job a few
months
before the accident. ! say that having regard to his work
history and to the general levels of unemployment in the country.
Further
periods of unemployment may also have impacted negatively on
the plaintiff's past earnings but for the accident. In my view 5%
should be deducted from the figure the actuary used as representing
the plaintiff's past earnings but for the accident. The figure
of
R107 066 must be reduced to R 101 713 (107 066-5353).
To
arrive at the plaintiff's past loss of earnings, his actual income
from the date to the accident to the date of the calculation
must be
deducted from his past earnings had it not been for the accident. It
is common cause that he received a disability grant
of R32 610. It is
therefore concluded that the plaintiff's pas loss of earnings must be
quantified at R69 69 103 (R101 713 - R
32610).
In
order to quantify the plaintiff's future loss of earnings, the
actuary calculated, for purposes of basis 2, that, but for the
accident, the plaintiff would have earned, expressed as a present day
lump sum, R1 336 896. The reader will recall that the calculation
was
made on the basis that the plaintiff would have worked in the
non-corporate sector, would have undergone on the job training
and
would have progressed to a semi-skilled work at between the ages of
30 and 35. For the plaintiff Mr Uys argued that at worst
for the
plaintiff, 15% must be deducted from that figure to allow for
unforeseen contingencies. Mr Knoetze for the defendant submitted
that
55% should be deducted for contingencies.
The
figure itself allows for contingencies, both negative and positive:
The plaintiff might not have been able, but for the accident,
to have
undergone on the job training and to have obtained semi-skilled work.
In such event the figure is too high and that used
in basis 1 should
have been used. On the other hand, the figure might be too low, and
that in basis 3 should have been used. The
plaintiff only worked for
a relatively short period before the accident. It is impossible, on
that history to conclude with any
confidence what would have happened
had it not been for the accident. His father has shown, albeit on a
low level, entrepreneurial
skills. His brother has obtained a
semi-skilled work. The plaintiff's mother, on the other hand, is
uneducated, unskilled and unemployed.
In my view to make a further
deduction for contingencies would render a figure that is by its
nature very uncertain, even more
uncertain.
According
to the actuary's calculation, the plaintiff will, having regard to
the accident, earn a present day sum of R476 558. Mr
Uys contended
that from that figure a further 55% must be deducted. Counsel
submitted that such a deduction would allow for the
possibility that
the surgery to rectify the hand might not be successful. It would
also allow for the fact that the plaintiff has
been out of the labour
market and will find it hard to catch up. Mr Knoetze also submitted
that 55% should be deducted but on the
basis that the same must be
done in respect of future earnings but for the accident.
There
is no evidence of a substantial risk that the surgery might not be
successful. I have been informed that the surgery will
probably be
performed early in 2011 in which event the plaintiff will, from about
June 2011 be able to work and to live a near
normal life. Subject
thereto that he may find it difficult to get employment at the
outset, he will probably be able to do unskilled
work. In basis 1 a
career of unskilled work but for the accident is quantified at about
R800 000. Having regard thereto, I am of
the view that the R476 558
allowed for a similar career having regard to the accident, is on the
low side. In this respect, too,
it is my view that a deduction for
contingencies will serve no purpose other than to render the
imprecise even more imprecise.
In addition, it must be borne in mind
that future earnings but for the accident and future earnings having
regard to the accident
are factors used to arrive at an ultimate
figure that seeks to quantify the plaintiff's future loss of
earnings. In this case,
by using the figure in basis 2 as
representing earnings but for the accident, one has, as I have
explained, already allowed for
substantial positive and negative
contingencies.
That
substantial allowance will be reflected in the final figure and it is
unnecessary also to make a contingency deduction from
the future
earnings having regard to the accident.
I
conclude
that the figure representing future loss of earnings in basis 2 must
be taken as representing the plaintiff's future loss
of earnings. On
that basis the award for loss of earning capacity will be R 684203
(Past loss of earnings of R69 103 + future loss
of earnings of R615
100 ).
That
brings me to general damages. Counsel referred me to
Ferber
v
Caledonian
Insurance CO Ltd (Corbett and Buchanan, The Quantum of Damages,
Vol
I,
347),
Tafen
v
Road
Accident Fund (Corbett and Honey, The Quantum of Damages,
Vol
V, D4
1
)
and
AA
Mutual Insurance Association Ltd
v
Maqula
1978
(1)
SA
805
(AS)
I
do
not intend to summarise those cases. Having regard to thee facts
therein and the present day values of the relevant awards, an
amount
of R250 000 should in my view be awarded.
I
take
into account that the plaintiff is presently disfigured and suffers
substantial loss of amenities but that the intended surgery
will
probably rectify that.
The
parties have agreed on the costs order to be made.
The
following order is accordingly made:
1.
Judgment is granted for the plaintiff against the defendant in the
sum of R936 203.00. The amount is payable on or before 28
th
November 2010, into the plaintiff's attorneys' trust banking account
number... at Standard Bank, White River.
2.
The defendant is ordered to furnish the plaintiff with an undertaking
in terms of
section 17(4)(a)
of Act 56 of 1996 to pay the plaintiff's
future hospital and medical expenses.
3.
The defendant is ordered to pay the plaintiff's costs including:
3.1
The costs of the expert reports served on the defendant or in its
possession;
3.2The
qualifying and reservation costs of the experts in 3.1 above;
3.3The
plaintiff's reasonable travelling expenses attend his own expert
assessments;
3.4The
costs of senior/junior counsel.
4.
The plaintiff is declared a necessary witness
B.R.
du Plessis
Judge
of the High Court.
On
behalf of the Plaintiff: Klagsbrun De Vries & Van Deventer
…
....................................
3
rd
Floor,
…
....................................
Hatfield
Plaza Burnettstraat 1122,
…
...................................
Hatfield,
Pretoria.
Adv.
P.L. Uys
On
behalf of the Defendant: Fourie & Fismer Inc.
…
..........................................
FSF
Law Chambers
…
.........................................
C/O
Brooklyn & Brooks Street
…
.........................................
Menlo
Park, Pretoria.
Adv.
A.C.F. Knoetze
1
An
arbitration award.