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[2011] ZAGPPHC 31
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Lebepe v Road Accident Fund (51420/2008) [2011] ZAGPPHC 31 (25 March 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
NOT
REPORTABLE
CASE
NO: 51420/2008
DATE:
25/03/2011
In
the matter between:
MASHAPA
DAMNIEL
LEBEPE
........................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
...................................................................
Defendant
JUDGMENT
MATOJANE
J
[1]
On 24 March 2004 and along the Kgopane - Duiwelskloof road, Limpopo,
a collision occurred between a Nissan truck bearing registration
number BDV 652 N, a Volkswagen Polo bearing registration number NLP
801 GP and a Toyota bakkie with registration number DSR 658
N.
[2]
Plaintiff was a passenger in the back of the Nissan truck and alleged
that the collision was caused by negligence of either
one or both
insured drivers. He claimed compensation from the Road Accident Fund
(hereinafter referred as "the defendant")
in the sum of
R705 000.00 made up as follows:
(a).
Past medical expenses
:
R120.00
(b).
Future medical expenses
:
R105
000.00
..
(c).
General damages
:
R600
000.00
Total
:
R705
120.00
[3]
The defendant conceded the merits. At the commencement of the trial I
was informed that the general damages have been fixed
at R80 000.00
and with regard to the claim for future medical expenses the
defendant undertook to furnish the plaintiff with an
undertaking in
terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.
[4]
The issue that remained in dispute was the claim for future loss of
income and or loss of earning capacity.
[5]
At the trial plaintiff adduced evidence. Defendant closed its case
without tendering any evidence on its behalf. The defendant
made the
following admissions:
a).
That the report of the orthopaedic surgeon, Dr Deodat Mare dated 25
October 2005 can be handed in without the necessity of
having to
call him as a witness and that the defendant accepts the correctness
of the contents of his report.
b).
That the actuarial calculations of the actuary Mr HLM du Plessis as
set out in his report dated 16 March 2011 are correct.
The defendant
however, did not accept the correctness of the information furnished
to Mr du Plessis in compiling his report.
[6]
The plaintiff, Mr Lebepe testified that he was born on 16 June 1968.
He is a farm labourer with no formal education. At the
time of the
accident he was employed by a certain Dennis Duvenage as a labourer
on his farm. He left his work and stayed at home
as a result of the
pain he was experiencing in his lower back.
[7]
He is presently employed on temporary basis at another farm where he
cannot complete a full day's work. He needs to work, stop
and take a
rest to allow the pain to subside. He earns Rl 400.00 per month.
Sometimes there is no work and he has to go home. Under
cross
examination he could not tell how much he earned before the accident
because he used to take food on credit from his employer
and his
salary would fluctuate.
[8]
At present the plaintiff suffers pain daily. His future as a farm
labourer is precarious. He won't be able to find permanent
employment. According to the medico-legal report the plaintiff
suffered the following injuries:
"2.2.1
Paravertebral qewriqqies
a.) Beskadiging van
die ligamentjies wat onstabiliteit tot gevolg het.
b).Beskadiging van
die gewrigsvlak kraakbeen oppervlak.
Beide hierdie sal
dan tot gevolg he dat die gewrig degenereer en mettertyd die totale
werweloorgang meganisme laat degenereer met
gevolglik pynlike post
traumatiese degeneratiewe spondilose. Vroee en erger sekondere
veranderinge word dus ookparavertebraal gesien.
2.2.2 Die Diski
Beskadig van die
diski behels krake in die eindplaat en/of riptuur van die annulis
fibrosis.
Die beskadiging van
die endplaat en/of annulis lei tot verlies aan die nucleus material.
Die diski vernou, die vlak kry geringe
onstabiliteit en post
traumatise degeneratiewe spondilose volg.
Die diskus vernou
met vroee onstabiliteit en later osteofiete en uitgesproke
degeneratiewe veranderinge in die diski."
[9]
The defendant contends that plaintiff has failed to prove his loss of
earning, he argued that the plaintiff's pre and post earnings
should
be considered to be the same as plaintiff could not prove how much he
earned before the collision.
[10]
It is trite that a court has a wide discretion in assessing quantum
of damages due to loss of earning capacity and has a large
discretion
to award what it considers right. In
Southern
Insurance Association v Bailey NO
1984(1)
All SA 98 at 113 (G) NICHOLAS 3A held:
"Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to
the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the court can do is to make an estimate,
which is often a
very rough estimate of the present value of loss"
[11]
In Dr Mare's calculations, the actuary assumed the plaintiff's
pre-injury earnings to be Rl 726 per month and multiplied that
amount
by 12 to arrive at R20 712 per annum and assumed inflationary
adjustments until retirement at 65. The method of calculation
is not
disputed by the defendant. The defendant, if I understand his
argument correctly, disputes the pre-injury earnings of Rl
726 per
month.
[12]
In my view, a salary of Rl 726 per month for a farm labourer cannot
be said to be out of the ordinary especially if regard
is had to a
discount to be made for contingencies. The rate of the discount is
largely arbitrary and must depend upon the judge's
impression of the
case (see
Southern
Insurance Association v Bailey supra
at
116 par H). It has to be borne in mind that the court has to look at
the current age of the plaintiff for purposes of the assessment.
The
plaintiff is 43 years old, his condition is not going to improve but
will decline further. I cannot find any fault with the
assumptions
made by the actuary and consider a contingency deduction of 5percent
pre-injury and 10 percent post injury to be fair
in all the
circumstances.
[13]
In the result, the plaintiff is entitled to an award of damages in
the sum of R233 297.00 made up as follows:
1.
General damages
:
R80 000.00
2.
Future loss of income and/or
:
R148 297.00 earning capacity
3.
Future medical expenses
:
Certificate
[14]
In the result the following order is made:
1.
The defendant is ordered to pay the plaintiff the sum of R228
297.00.
2.
The defendant is directed to furnish an undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.
3.
The defendant is ordered to pay the costs of suit as taxed or
agreed, on a party and party scale, such costs are to include
the
costs of all experts as well as qualifying expenses, if any.
4.
The plaintiff is declared a necessary witness.
MATOJANE,
J