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[2010] ZAECPEHC 51
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Nolokwe v Road Accident Fund (1405/2008) [2010] ZAECPEHC 51 (13 July 2010)
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION – PORT ELIZABETH
CASE
NO: 1405/2008
DATE
HEARD: 08/06/
10
DATE
DELIVERED: 13/07/10
In the
matter between
NOMTHANDAZO
GLORIA NOLOKWE PLAINTIFF
And
ROAD
ACCIDENT FUND DEFENDANT
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
TSHIKI J:-
A) INTRODUCTION
[1] On the 6 May 2004 the Plaintiff’s son
Zukisani, born on 19 July 1995, was injured in a motor vehicle
accident from which
he sustained serious injuries. At the time of
the accident Zukisani was doing grade 3.
Consequent
upon the injuries sustained the plaintiff sued the Defendant for
compensation for damages sustained by her minor son
as well as the
special damages for expenses she had incurred for her son’s
injuries.
B) ISSUES
[2] At the time of the trial the parties ha
d
settled all the other damages except for one issue which is whether,
in addition to the contingencies already taken into account
by the
actuary, there was a need for the court to consider ordering further
contingency deductions relating to early mortality.
Mr Frost appeared for the Plaintiff and Mr Jooste for the Defendant.
C) EVIDENCE
[3] The only witness called was Dr Richard Holmes
the industrial psychologist who testified on behalf of the Plaintiff.
His evidence is,
inter
alia,
that on 25 February 2009 he
consulted with and examined Zukisani to consider a number of aspects
pertaining to the minor child’s
expected further schooling,
future employment, lifestyle and general adjustment. His medico
legal reports as well as those of,
inter
alia
, Ian Meyer a clinical
psychologist, Ansie Van Zyl an Occupational therapist, Dr R.J Keeley
and Nilen Kambaran were received by
consent as evidence.
[4] According to Dr Holmes the amount reflected in
the actuarial report by Nilen Kamberan has already taken into account
all the
contingencies and for that reason no further contingencies of
whatever source or nature should further be considered at this stage.
He further stated that the actuarial methodology and assumptions
used in the report as well as the figures and results thereof
were
agreed to by both parties. Dr Holmes testified further that they
have used, as a basis, well founded scientific surveys.
When
considering Zukisani’s circumstances they had to take into
account,
inter alia
,
all the factors more importantly the fact that he was injured at a
very young age, and they have considered appropriate the use
of both
the national as well as the most relevant geographical
salary/remuneration progression curves.
[5] In considering the Anticipated Future Income Potential, given the
understanding that Zukisani’s cognitive and socio-
emotional
deficits would not improve and that he is likely to encounter
increasing difficulty in coping with his school work as
he progresses
to a higher grade, it is likely that he might not progress beyond
Grade 12 education. Therefore, entry to the job
market would be at a
low-skilled level and that advancement to a semi- skilled level would
be severely restricted, if not precluded.
The salary/ remuneration
tables used by Dr Holmes would be relevant to the circumstances of
Zukisani. The tables also take into
account as appropriate the
awarding of a significantly higher post-accident contingency
deduction. This is so given Zukisani’s
orthopaedic injuries,
demonstrated and measured post-accident neurocognitive impediments
and his continuing socio-emotional difficulties.
Therefore, the
actuary in Exhibit F (Actuarial Certificate Of Value Loss Of
Earnings) has applied a 40% contingency reduction
in the figures from
January 2016 to the time when Zukisani would be thirty (30) years and
a deduction of 25% from thirty (30) years
to retirement.
[6] Dr Holmes specifically informed the Court that in the assessment
of prospective loss the actuarial report exhibit F has already
taken
into account of possible future events which might have caused the
loss or part of a loss which may influence the extent
of the loss.
According to him any application of further contingencies would bring
about hardships and would, therefore, be unfair
to Zukisani’s
award of damages for future loss of earnings.
[7] During cross examination of Dr Holmes by Mr Jooste the witness
confirmed that they use the natural and geographical surveys
and that
the Eastern Cape figures are utilised into the National figures with
a view to come to the result which would take consideration
of the
fact that in the more rural places the figures would be low. The
figures displayed in the table also make allowance of
all the
possibilities including the fact that unemployment could be the
result of a person who is capable of employment but cannot
find a
job. No amount of cross examination could discredit his evidence and
I have no reason to reject it.
[8] After the evidence of Dr Holmes both parties closed their cases.
Mr Frost has urged the Court to find in favour of the Plaintiff
by
relying on the uncontested and uncontradicted evidence of Dr Holmes
as well as the contents of the exhibits including exhibits
F and G (
as amended).
[9] Mr Jooste has argued that Dr Holmes is no expert in contingencies
and, therefore, his evidence could not be of assistance to
the Court.
He argued further that the Plaintiff cannot deal with everything
pumped into the basket of contingencies which Dr Holmes
did not deal
with in detail.
[10] What is relevant here is future
contingencies. It is customary and, therefore, necessary that in the
assessment of prospective
loss, a Court has to take into account
possible future events which may affect or influence the extent of
the loss. In this case,
if I agree with Mr Jooste, I have to
determine probably future events and circumstances prognostically in
order to assess the present
value of Zukisani’s expectancies
1
.
When the plaintiff claims his or her damages the money claimed,
which also includes future loss of earnings, has to be paid at
the
finalization of the case. It means that the damages paid would also
include in monetary terms damages for what he would have
to earn in
20- 30 years to come. This depends, however, on the age of the
person on behalf of whom the Plaintiff is claiming.
It may happen
that a few days after the payment of the damages the injured person
dies of suicide or of a motor accident or any
cause. That money
would definitely have to be paid into the injured person’s
estate and will be inherited by people who
never suffered any
damages. It is for that reason that the Court when awarding damages
for future loss of income has to take into
account the contingencies.
Visser et AL
2
above state as follows:
‘
Contingencies include any
possible relevant future event which might have caused the damages or
part thereof or which may influence
the extent of the plaintiff’s
damage. In a wide sense contingencies are described as “the
hazards that normally beset
the lives and circumstances of ordinary
people
3
.
These include such matters as the possibility that the plaintiff may
in the result have less than a “normal” expectation
of
life, and that he may experience periods of unemployment by reason of
incapacity due to illness or accident, or to labour unrest
or general
economic conditions”
4
.
[1
1] In my view, when
the Court considers the application of contingencies in a given case
it has to have in mind that not all contingencies
are adverse and not
all vicissitudes are harmful. A particular plaintiff might have had
prospects or chances of advancement and
increasingly remunerative
employment. Why count the possible buffets and ignore the rewards of
fortune? Each case depends upon
its own facts. In some it may seem
that the chance of good fortune might have balanced or even
outweighed the risk of bad
5
.
[12] According to the only available evidence and contrary to Mr
Jooste’s argument, the above contingencies which are applicable
in every given case were taken into consideration when the amount due
to Zukisani was calculated. Evidence by Dr Holmes to this
effect has
not been refuted nor is there any other evidence to the contrary. Mr
Jooste has argued that Dr Holme’s evidence
that everything has
been taken into account is vague as it does not specify what is it
that has been considered. I do not agree
with him. It was Dr
Holme’s evidence that all contingency deductions which ought to
be considered in cases of this nature
have been taken into account.
This is how I understood his evidence. He went on to suggest that if
there are any contingency
considerations other than those already
deducted it would be a duplication which would be an unfair reduction
to the Plaintiff’s
damages. I agree with him.
[13] In the result I am of the view that in the present case there is
no need for additional contingency deduction for consideration
by
this Court. The manner used in calculating the deducted
contingencies does not appear to me to be oppressive to the
Defendant.
On the contrary, if anything, it amounts to 65% and,
therefore, leans in favour of the Defendant.
[14] In the result I make the following order:
14.1 Defendant is ordered to pay Plaintiff the sum of one million six
hundred and seventy eight thousand nine hundred and six rand
(R1 678
906 – 00) being damages for future loss of earnings. Defendant
shall further pay interest on the sum of R1 678 906
– 00 at the
rate of 15,5% per annum from 14 days after the date of delivery of
this judgment.
14.2 Defendant shall pay Plaintiff’s costs of suit, as taxed or
agreed, on a party and party scale together with interest
thereon at
the legal rate of 15% per annum as from a date fourteen days after
taxation or agreement. Such costs are to include;
15.2.1 Th
e qualifying
expenses, if any, of Mr Ian Meyer, Ms Ansie Van Zyl, Dr R.G. Holmes,
Dr R. Keeley and the Actuary Nilen Kambaran.
______________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT.
Appearances:
For the Plaintiff: Adv Frost instructed by Roelofse Meyer - Port
Elizabeth
For the Defendant: Adv Jooste instructed by Friedman Scheckter - Port
Elizabeth
1
See Visser et AL on Visser And Potgieter’s
Law of Damages, 2
nd
ed. Para. 6-7.1 page 125.
2
At page 128 para 6.7.3
3
Southern Ins Ass Ltd v Bailey 1984(1) SA 98 (A)
4
See Southern Ins Ass Ltd v Bailey above at 116 H
5
Per Windeyer J in the Australian case of Bresatz
v Przibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at 213 quoted in Southern
Insurance Association v Bailey NO
1984 (1) SA 98
AD at 117 B –
D.