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[2011] ZAGPPHC 50
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Mokgara v Road Accident Fund (65602/09) [2011] ZAGPPHC 50 (1 April 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 65602/09
DATE:
01/04/2011
In
the matter between:
MASEGO
CONGRESS
MOKGARA
.................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
................................................................................................
Defendant
JUDGMENT
MNGQIBISA-THUSI
J
[1]
On 1 November 2005 and at approximately 15h00 and along Makapanstad
Road, Makapanstad, Gauteng, Limpopo, a collision occurred
between a
motor vehicle bearing registration number ECH 738 GP and the
plaintiff who was a pedestrian at the time.
[2]
Plaintiff alleged that the collision was caused by negligence of the
insured driver. He claimed compensation from the Road Accident
Fund
(hereinafter referred as "the defendant") in the sum of R2
174 411.00 made up as follows:
(a)
Past medical expenses :
..............................
R
15 000.00
(b)
Future medical expenses :
….....................
R 100000.00
(c)
Past loss of income:
…................................
R
280 064.00
(d)
Future loss of income inclusive
of
future loss of employability :
…....................
Rl
579 347.00
(e)
General damages :
….................................
R
600000.00
Total
:
…......................................
R2
174 411.00
[3]
The parties reached a settlement on the merits on a 80 per cent 20
per centapportionment in favour of the plaintiff. The parties
have
also agreed on general damages in the amount of R250 000.00. 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
.
Furthermore the parties have agreed that the defendant will be liable
for the costs of the aaction in the amount of R100 000.00.
[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 no evidence was adduced. Counsel for the plaintiff and
the defendant addressed me on the contingency which should
be applied
with regard to future loss of earning capacity using the calculation
of the actuary, Mr Kramer.
[6]
It was submitted on behalf of the plaintiff that the contingency
differential as calculated by the actuary for loss of earning
capacity should be set at 20 per cent but for the accident and 50 per
cent having regard to the accident. Counsel for the plaintiff
contended that as a result of the accident the plaintiff will find it
difficult to find employment. As a result of the injury to
his right
arm he was now unable to pick up or carry heavy objects, the kind of
job best suited to him for lack of education, based
on the report of
the industrial psychologist Mr Mendelowitz. Counsel for the defendant
argued that a contingency differential of
25 per cent but for the
accident and 35 per cent having regard to the accident. He argued
that there was no proof that the plaintiff
could have attained a
higher standard of education had the accident not occurred.
[7]
The plaintiff is currently unemployed.
[8]
According to the medico-legal report the plaintiff suffered the
following injuries:
a)
open fracture of the right humerus;
b)
the right bone protruding through the skin.
[9]
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"
[10]
In Mr Kramer's calculations, it is assumed that the plaintiff's
pre-injury earnings is zero since at the time of the accident
he was
a learner and not earning any income. The method of calculation is
not disputed by the defendant. The defendant disputes
the post-injury
earnings of R5 700 per annum.
[11]
In my view, a salary of R5 700.00 per annum for an unskilled 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 25 years old. However
his condition does not appear that
it will decline further. The medical reports do not indicate that the
plaintiff's cognitive
ability is impaired. Secondly only his right
hand appears to be affected. He can still learn to use his left hand.
His mental capacity
is still intact. Based on the above I am of the
view that the contingency recommended by the actuary is too liberal.
For that reason
I am of the view that the contingency suggested by
the Fund's counsel is more realistic. The actuary should do the
calculations
for loss of earning capacity based on the contingency of
25 per cent pre morbid and 35 per cent post morbid.
[12]
In the result the following order is made:
1.
The defendant is ordered to pay the plaintiff the sum of R250 000.00
subject to the apportionment agreed upon;
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
.
2.
The defendant is ordered to pay the costs of suit as agreed in the
amount of R100 000.00, and such costs
are
to include the costs of all experts as well as qualifying expenses;
3.
The amount of future loss of earning capacity to be quantified by the
actuary on a contingency basis of 25 per cent pre-morbid
and 35 per
cent post morbid.
NP
MNGQIBISA-THUSI, J