Robertson v Road Accident Fund (1864/2008) [2009] ZAECPEHC 52 (29 October 2009)

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[2009] ZAECPEHC 52
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Robertson v Road Accident Fund (1864/2008) [2009] ZAECPEHC 52 (29 October 2009)

FORM
A
FILING
SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case
Number:
1864/2008
High
Court:
Port
Elizabeth
DATE
HEARD:
20
& 21 October 2009
DATE
DELIVERED:
29
October 2009
JUDGE(S):
D.
Chetty
LEGAL
REPRESENTATIVES –
Appearances:
for
the Plaintiff(s):
Adv
D Niekerk
for
the Defendant(s):
Adv
A Frost
Instructing
attorneys:
Plaintiff(s):
Mr
Jock Walter of Jock Walter Attorneys
Defendant:
Mr
Armoed of Boqwana Loon & Connellan
CASE
INFORMATION -
Nature
of proceedings
:
Action
for Damages
Topic:
Key Words:
Motor
vehicle accident – Damages – Loss of earnings – Experts relying
on plaintiff’s contentions – Plaintiff’s evidence
not
supporting claim for loss of earnings – Claim dismissed – General
damages – award making provision for claim for past
loss of
earnings
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: 1864/2008
In the matter between:
DENIS ROBERTSON Plaintiff
And
ROAD ACCIDENT FUND Defendant
Coram:
Chetty,
J
Dates Heard:
20
and 21 October 2009
Date Delivered:
29
October 2009
Summary
Motor
vehicle accident – Damages – Loss of earnings – Experts relying
on plaintiff’s contentions – Plaintiff’s evidence
not
supporting claim for loss of earnings – Claim dismissed – General
damages – award making provision for claim for past
loss of
earnings
________________________________________________________________
JUDGMENT
________________________________________________________________
CHETTY, J
[1] This is an
action for damages for personal injury suffered by the plaintiff in a
motor vehicle collision which occurred
on
14 February 2007 on the N2 freeway in Port Elizabeth. The defendant
conceded the merits of the action and the trial was accordingly

confined to determining only the issues relating to the
quantification of general damages, loss of earnings and loss of
future
earning capacity. Agreement had been reached in respect of
past medical expenses in the amount of R35 421. 87 and the defendant

has tendered an undertaking pursuant to the provisions of section 17
(4) (a) of the
Road
Accident Fund Act
1
.
Appropriate orders hereanent will be incorporated in the order which
I propose to make at the conclusion of this judgment.
[2] The plaintiff
was born on 20 September 1951 and is currently 58 years of age. He is
married and the father of 2 adult children
both of whom are in fixed
employment. He describes himself as the sole proprietor of a
decorative sandblasting enterprise styled
Group Design 2 (GD2) which
he jointly purchased with his wife during 2002 for R110 000.00 and
which he operates from premises situate
on his smallholding in
Theescombe, Port Elizabeth where he resides with his spouse and
mother-in-law. In addition to the aforementioned
business the
plaintiff alluded to a further business conducted on the
smallholding, to wit, an exotic animal breeding enterprise
from which
he alleges he likewise generated an income.
[3] Thus, in his
amended particulars of claim, damages categorized as loss of earnings
and for loss of earning capacity is claimed
in an amount of R2 223
400.00, the relevant allegations being -
“
8.3.1 The
Plaintiff was at the time of the collision self-employed, running a
decorative sandblasting business, from which he earned
a net profit
of R20 000.00 per month.
The
plaintiff was for a period of 4 months unable to work, and
although his wife and employees continued to work as much
as
possible, he suffered a direct loss of profit in the estimated
amount of R10 000.00 per month, i.e. a total of R40 000.00.
8.3.3
He
furthermore earned an additional amount of R30 000.00 per annum
profit from the breeding and selling of exotic animals, which
he is
no longer able to earn.
His
future business growth estimated at 8% to 15% per annum in real
terms will no longer be achievable, and his business
is now
declining by 10% per annum, and will continue to do so.
8.3.5
As
he is no longer able to drive, he has had to employ a driver at a
salary of R3 465.00 per month.
He
has therefore suffered a loss of income and/or income earning
capacity in the sum of R2 223 400.00 as set out in the
actuarial
report of Alex Munro dated 16 October 2009.”
[4] In so far as
general damages is concerned the plaintiff seeks an amount of R220
000.00. Whilst the defendant has accepted that
the plaintiff is
entitled to an award for general damages, albeit not in the amount
sought, the claim for past loss of earnings
and for future earning
capacity was strenuously resisted, defendant’s counsel’s only
concession being that if I felt constrained
to make some award
thereanent, the appropriate course would rather be to increase the
award for general damages to make allowance
therefore.
2
[5] The plaintiff’s
claim in respect of loss of earnings was calculated by the actuary
Mr.
Alex
Munro
on information derived from Dr
H.J
Van Daalen (Van Daalen)
,
an industrial psychologist whose services were enlisted, according to
him,
“to
assess the claimant’s (plaintiff’s) future prospects in the
employment field and also to confirm to what degree this may
have
been curtailed, to further make a prediction on the positions he is
possibly able to fill together with the income he is able
to earn”
.
[6] The factual
material contained in
Van
Daalen’s
reports was in turn sourced from the plaintiff and, as adumbrated to
by
Van
Daalen
under cross-examination, from certain financial statements furnished
to him by Mr.
C.D
Scholtz
(
Scholtz
),
an accounting graduate, of CDW Bookkeeping Services who masqueraded
as the plaintiff’s accountant. These financial statements
formed
part of exhibit “B” and were introduced in evidence to
demonstrate a decline in GD2’s turnover post collision. These

income statements afford no corroboration whatsoever for the
plaintiff’s assertion that GD2’s turnover steadily decreased post

collision. It is obvious from
Scholtz’s
own testimony that in order to minimize GD2’s income tax liability
he manipulated the financial statements and he was constrained
to
concede as much under cross-examination by Mr.
Frost
.
It is abundantly clear that dubious methods were employed in the
preparation of these financial statements. Furthermore,
Scholtz
relied solely on figures faxed to him on a two monthly basis from the
plaintiff which allegedly constituted VAT returns. The source

documents were never seen by him and, it is patently clear that
Scholtz
fiddled the books. Both exhibit “B” and the entire body not only
of his evidence but that of the plaintiff concerning these
financial
statements falls to be rejected.
[7] The aforegoing
circumstances raise serious concerns whether
,
not only GD2 but moreover the exotic animal breeding enterprise,
suffered the losses contended for. In so far as the latter
enterprise is concerned it is important to note that in the original
particulars of claim the plaintiff’s loss of earnings was
limited
to the sandblasting business. Those particulars were filed of record
in September 2008, more than eighteen months after
the collision and
although no adverse inference can
per
se
be drawn from its omission, the failure to incorporate them earlier
assumes an altogether different dimension upon a holistic appraisal

of the evidence tendered on behalf of the plaintiff.
[8] The plaintiff
alleged that he purchased the smallholding with the objective of
breeding exotic animals and developing the property
into a touch farm
and events venue. He described himself as passionate about animals
and photographs of the property which were
introduced into evidence
as exhibit “C” bears testimony to its suitability for the
purposes envisaged. The plaintiff described
how he built various
cages and enclosures where he bred chinchillas, parrots, peacocks and
fowls and a dam in which he bred tilapias.
He testified that prior
to the collision he sold - approximately six thousand tilapias at
prices ranging from R1 to R1.50; initially
approximately six male
chinchillas a year which increased as his herd multiplied to the
extent where he would sell females and
pairs; between 6 to 8 parrots
for between R100.00 to R200.00 each per year; and day old chicks
which generated an income of approximately
R2000.00 every 3 weeks.
Although he adverted to the fact that he sold eggs as well he was
unable to give any indication what his
profit margins were and
further alleged that a small nursery business on the property
generated an income of approximately R500.00
monthly. As
corroborative evidence that the collision had adversely affected his
capacity to generate an income from these activities
the plaintiff
referred to the contrast between the upper and lower sets of
photographs in exhibit “C” which he alleged unequivocally

demonstrated a decline in the smallholding’s once pristine
condition.
[9]
The
contrast on certain of the photographs is quite glaring and certainly
attests to a general decline in the number of animals
kept but in
other photographs there does not appear to be any decline in the
overall standard of the smallholding itself. Whilst
certain of the
cages appear dilapidated, I am far from persuaded that the plaintiff
has succeeded in establishing that he suffered
any loss of earnings
from this particular business enterprise. The main difficulty is that
the plaintiff kept no records whatsoever
relating to the alleged
business. His evidence concerning this business is unsatisfactory and
in certain respects in conflict with
the report of
Van
Daalen
in which no mention is made of the profits generated from the sale of
the day old chicks and plants in the nursery. Furthermore,
in
contradistinction to what he reported to
Van
Daalen
,
he made no mention during his testimony that he bred pheasants and
quails and the profit margins are moreover irreconcilable.
In the
light of the aforegoing paucity and contradictory nature of the
evidence I am unable to find that the plaintiff has established
that
he has suffered a loss of earnings from this enterprise as alleged.
The major component of the claim relating to loss of earnings
of
course relates to the sandblasting business. In this regard too the
evidence adduced is wholly inadequate to show, on a preponderance
of
probabilities, that the plaintiff has suffered a loss of earnings as
alleged.
[10
] As
adverted to hereinbefore,
Van
Daalen’s
reports constituted the basis upon which the actuarial calculations
were made. During the trial however I directed that he meet
with the
defendant’s expert witness Mr.
Hannes
Swart
(
Swart
)
in an attempt to reach consensus. A joint minute emanated therefrom
in which they
inter
alia
agreed that the financial extent of the plaintiff’s loss could not
be quantified by them and demurely suggested that it be left
to the
court to make the calculation, if any. It is of importance to note
that as regards the claim for loss of earnings, they
reached
consensus that –
“
The
experts agree that subsequent to the accident there had been a drop
in turnover and this could partially be due to his immobility
and
psychological sequelae. We both agree that this is difficult to
quantify precisely i.e. which proportion is due to economic
decline
or the sequelae stated. HvD is of the opinion that a decline in
building activities normally lags behind the recession
in normal
activities by 12 to 18 months due to contracts still being
completed.”
[11
] In
Swart’s
report, he opined that
“I
have no doubt that the claimant is quite able to continue with his
business or business in the same fashion as he had before
the
accident. I am not at all convinced that his ankle injury would have
caused any of these business to cease existence or even
deteriorate
significantly. I am finally of the opinion that the Claimant can
continue with his business until the said retirement
age of 65 to 70
years – if not even beyond that. I cannot agree to the suggestion
that the Claimant is in need of a permanent
driver at the expense of
the Defendant.”
[12
] Although
Swart
was not called to testify and his report not admitted by the
plaintiff, during cross-examination
Van
Daalen
agreed with this conclusion of
Swart
.
Whilst I have the utmost sympathy for the plaintiff’s plight his
evidence is unconvincing. The initial impression created during
his
evidence in chief was that the entire sandblasting business depended
upon his personal involvement. He referred to his active

participation in the entire process ranging from design, measurement,
artwork and installation. It later transpired however that
one of his
employees, one
Junior
,
whom he described as his artist and right hand man, performed most of
the work together with the other employees and that the
position has
remained unchanged save that their workload has increased by reason
of his inability to traverse uneven terrain and
to climb ladders and
mount scaffolding. On the evidence however the plaintiff’s
inability to do so has not had a deleterious
effect on the business’
profit margins and whilst it is so that his injury has to an extent
compromised his ability to drive
a manual vehicle, this will no doubt
be offset by the conversion of his vehicle to automatic. As
adumbrated earlier I am unable
to find that the plaintiff has proved
that he suffered a loss of earnings as claimed.
General Damages
[13]
After
the collision and being freed from his vehicle the plaintiff
unsuccessfully tried to walk. Following his admission to Greenacres

hospital radiographic examination revealed a fracture of the left
calcaneus. Dr.
Mackenzie
opined that comminuted joint depression type calcaneus fractures are
notoriously difficult to manage and that it is seldom possible
to
fully restore the congruity of the subtalar joint and in particular
the articular facet of the calcaneus. Although he recommended
future
surgical intervention in the form of a subtalar arthrodesis, he was
constrained to concede that this may not be necessary.
The
discomfort associated with the injury however is and remains real.
Following his discharge from hospital the plaintiff was
confined to a
wheelchair for two months whereafter he used crutches for three
months before being able to walk unassisted. His
outdoor activities
have severely been curtailed and this has no doubt contributed to his
current depressed state. Counsel have
referred me to various
authorities dealing with awards in matters of similar ilk. These have
proved useful in determining the award
which I propose to make.
Plaintiff’s counsel submitted that a fair award would be one in the
region of R220 000.00 whilst counsel
for the defendant submitted than
an amount of R150 000.00 would constitute a fair award.
[14] In the course
of this judgment I have emphasized that the plaintiff has failed to
discharge the onus to prove that he suffered
a loss of earnings in
the amount claimed. The experts were in agreement that the drop in
the plaintiff’s turnover could partially
be due to his immobility
and psychological sequelae. They were unable to place a monetary
value on the loss of earnings occasioned
thereby. It would be wholly
inappropriate for me to attempt do so but there can in principle
appear to be no impediment to award
a lump sum incorporating the
claim for future loss of earning capacity. This much was recognised
by Burne J in
Roberts
N.O v Northern Assurance Co Ltd
3
where the learned judge stated –
“
I
proceed now to deal with several matters that require attention
before the quantum of damages can be fixed. The first is whether
the
approach, suggested by Mr Broome, of endeavouring to assess loss of
future earnings separately from the balance of the claim
for general
damages, is an appropriate approach. I have no doubt but that I am
not compelled to sub-divide the claim for general
damages into
various compartments and to put a separate money value on each
compartment. I conceive it to be clear that a Court
is free, should
it consider such a course desirable, to award one lump sum for all
aspects of general damages. This was accepted
by both counsel. In
this connection, it is not without significance that in his
declaration the plaintiff simply claimed a lump
sum, and I did not
interpret Mr Broome’s suggestion that I should deal with the claim
in two compartments as being any derogation
from or modification of
the claim as presented in the declaration.
The conclusion to
which I have come is that I should award one lump sum to cover all
aspects of the claim for general damages. I
consider it wholly
inappropriate, in the circumstances of the present case, to endeavour
to put a separate money value on the claim
for loss of future
earnings along the lines suggested by Mr. Broome.”
In all the
circumstances I consider that an award of R200 000.00 would be
appropriate.
In the result the following order will issue –
Defendant is
ordered to pay
the plaintiff the sum of R235 421.87 which sum is made up as follows
–
1.1 past medical
expense
s R
35 421.87
1.2 general damages R200 000.00
Defendant, by
agreement, is ordered to furnish the plaintiff with an undertaking
in terms of
section 17
(4) of the
Road Accident Fund Act 56 of 1996
to cover all future medical expenses, including, as agreed upon, the
conversion of the plaintiff’s vehicle to automatic.
Defendant is
ordered to pay the plaintiff’s costs of suit which shall include
the qualifying expenses of the plaintiff’s expert
witnesses, to
wit, Dr B.L Mackenzie, Dr. H.J Van Daalen, Ansie Van Zyl, Alex Munro
and Mark Eaton.
_______________________
D. CHETTY
JUDGE OF THE HIGH COURT
Obo
the Plaintiff: Adv
D.
Niekerk
Instructed
by Jock Walter Attorneys
38-3
rd
Avenue
Newton
Park
Port
Elizabeth
Ref:
A J Walter/jt/M6236
Tel:
041- 363 5501
Obo
the Defendant: Adv A. Frost
Instructed
by Boqwana Loon & Connellan
4
Cape Road
Port
Elizabeth
Ref:
Mr. I Armoed/K44657
Tel:
041- 506 3700
1
Act No. 56 of 1996
2
Counsel’s submission is not res nova as I shall in due course
elaborate upon.
3
1964 (4) SA 531
(D) at 536H-537B