About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2016
>>
[2016] ZAECPEHC 32
|
|
Mullins v Road Accident Fund (3650/2014) [2016] ZAECPEHC 32 (4 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO.: 3650/2014
In
the matter between:
JONATHAN
WAYNE MULLINS
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BESHE
J:
[1]
On the 23 March 2013, a motor vehicle with registration letters and
numbers F[......] collided with the plaintiff
Mr
Jonathan Wayne Mullins
,
who was a pedestrian at Stanford Road, Port Elizabeth. Plaintiff is
suing the defendant for damages he suffered as a result of
the
collision.
[2] By agreement between the parties, the merits of
plaintiff’s claim were settled on the basis that the plaintiff
is entitled
to 80% of his damages. It was agreed that the defendant
will furnish the plaintiff with an undertaking in terms of
Section
17
(4) (a) of the
Road Accident Fund Act No. 56 of 1996
, to pay
to the plaintiff 80% of the costs of future accommodation in a
hospital or nursing home, or treatment of, or rendering
of a service
to, or supplying of goods to the plaintiff, as a result of injuries
sustained by him in the motor vehicle collision
in question, and the
sequelae thereof, after the costs have been incurred and upon proof
thereof.
[3]
The plaintiff’s claim for general damages was settled between
the parties in the sum of R650 000.00 minus the 20% apportionment.
[4]
The only issue that remained between the parties was the quantum of
the plaintiff’s claim for loss of earnings and earning
capacity. Plaintiff’s claim in this regard is for an amount of
R3 754 100.00. It appears to be common cause that plaintiff
is
unemployable following injuries sustained as a result of the
collision in question.
[5] The plaintiff was self-employed before the
collision. He could not produce any record of his earnings in the
form of salary
slips from which the loss of future earnings and
earning capacity can be assessed. In a bid to place evidence from
which an assessment
of what his earnings would have been, evidence
was adduced in support of plaintiff’s claim from:
- the plaintiff himself;
-
Doctor Peter Whitehead
, an Industrial
Psychologist who had prepared a report in this regard;
-
Ms Ansie Van Zyl
, an Occupational Therapist who
likewise had compiled a report as well as a supplementary report.
-
Also placed before me were two actuarial reports compiled by Munro
Consulting Actuaries.
[6]
No evidence was adduced on behalf of the defendant.
[7]
Plaintiff testified that he dropped out of school whilst doing Grade
11. However even before dropping out of school, he would
assist his
neighbour
Mr Webber
who was involved in construction work. Having dropped out of school,
he held jobs as a factory worker repairing furniture. Then
at another
factory as a machine operator. In-between the jobs he held at three
different factories, he would be engaged in doing
construction work,
painting and doing crede-stone skimming. He explained skimming to be
an exercise where one would level the surface
of the wall and ceiling
after a builder had done his / her part. He testified that there were
not many skimmers. He together with
one
Mr
Deon Jacobs
would
work for a subcontractor or for themselves – (self-employed).
He testified that sometimes he would enter into agreements
with his
employers or contractors which would be signed before a police
officer. He however did not produce any of those agreements.
[8]
Plaintiff testified that the day before the collision he was working
as a painter with
Mr
Jacobs
for a
company by the name Starwanda. The last named company was building
“RDP” houses on behalf of the municipality.
Together with
Jacobs
,
they would be paid R1000.00 per house which they would then divide
between themselves. They earned between R10 000.00 and R12
000.00 per
fortnight. In respect of other jobs, he would charge R35.00 per
square metre for painting and R45.00 per square metre
for skimming.
Although he did not always have jobs to do, his income varied from
R10 000.00 to R25 000.00 per month. He however
did not have a bank
account. He attributed this to not having an identity document, which
in turn he attributed to an attempt to
avoid detection by the police
for old cases.
[9]
It also transpired that for a period of eighteen (18) months, he drew
a disability grant from the Department of Social Development.
This
was after the collision. He received a total of R23 760.00.
[10]
It also transpired that plaintiff did not have any formal training or
qualification as a painter or skimmer. He only received
on-site
training. It emerged that having left school in 1994, for
approximately three (3) years thereafter, he was involved with
gangs
and drugs.
[11]
Mr Mullins
testified that he did not have a house of his own. He stayed at his
mother’s place. He moved out of his mother’s house
for a
short period and moved in with a girlfriend. He did not own a
vehicle. He gave his age as being thirty eight (38) years old.
[12]
Doctor Whitehead
took the court through his
report. The salient parts of the report are the following:
Plaintiff
gave him details of a number of concerns he worked for, the nature of
work he did for those concerns as well as how much
he earned working
for those concerns.
[13]
Doctor Whitehead
reported that given the
uncertainty of plaintiff’s earnings as a skimmer, he contacted
some construction businesses in the
Eastern Cape as well as in the
Western Cape for collateral information in this regard. He also
consulted some of the construction
companies plaintiff alleged he had
worked for.
[14]
One such contractor was
Mr
Tait
for whom
plaintiff worked for a period of one (1) week after the collision
earning R250.00 per day. He did paint work. It would
appear that
plaintiff stopped working for
Mr
Tait
after the
latter learnt that he suffered injuries as a result of the motor
vehicle accident in question. He also could not keep
up with the
work.
[15]
As regards other individuals / concerns plaintiff indicated he had
worked for,
Mr
Whitehead
could not
reach them. The one that he was able to contact was a representative
of Starwanda, but they were not willing to provide
any information
relating to the plaintiff.
[16]
Having examined all the permutations based on information obtained
from the plaintiff as well as collateral information
Doctor
Whitehead
concluded
that plaintiff’s pre-morbid earnings would have been
approximately R138 000.00 per annum. He would probably have
worked 8
to 10 months a year. He also testified that had it not been for the
collision in question, plaintiff would in all probability
have worked
until he reached the retirement age which is usually at age sixty
five (65).
[17] Munro Consulting Actuaries compiled two (2) reports
one at the behest of plaintiff’s attorneys and the other at
defendant’s
request. Both reports are based on
Doctor Peter
Whitehead
and
Amorei Van Der Westhuizen’s
report of
the 11 November 2015 to which I referred to earlier. The first report
(one requested on behalf of plaintiff) was compiled
on the 16
November 2015. The latter report (at behest of defendant) is dated 2
February 2016. As indicated it is based on
Doctor Whitehead
et
al
report as well as on Munro Consulting Actuaries earlier report
of the 16 November 2015.
[18] The first actuarial report is premised on the
assumption that plaintiff earned R15 338.00 per month for nine (9)
months a year
consisting of the following components of work:
Skimmer earning R15 338.00 per month.
Painter earning R1 500.00 per month less expenses of R1
750.00 per month.
An
assumption that plaintiff’s income would have increased by 9%
per year until retirement at age sixty five (65).
[19]
This report puts plaintiff’s total loss of income at R3 754
100.00.
[20]
For purposes of the second actuarial report, the actuary was
instructed to assume that the plaintiff was a semi-skilled worker
earning R56 000.00 per year at the time of the collision. That his
income would have increased by 9% per year until his retirement
at
age sixty five (65). This report placed plaintiff’s total loss
of income at R1 610 000.00.
[21]
This dichotomy of instructions from the respective attorneys
underpins the essence of the dispute between the parties in this
regard. This is brought about mainly as a result of the
unavailability of any records pertaining to plaintiff’s
earnings.
Documents such as pay slips, agreements, bank statements,
quotations and the like which would have given a clear indication
regarding
plaintiff’s earning and landed credence and reliance
to his say-so.
[22]
To a large extent the court only has the say-so of the plaintiff as
to what he earned prior to the collision. He is the only
source of
information in this regard. This is so because even the expert
reports compiled were largely compiled on the basis of
the
information provided by him.
[23]
It is trite that, as stated in
Bridgman
NO v Road Accident Fund
[1]
that:
“
In
order to claim compensation for patrimonial loss, plaintiff must
discharge the onus of proving, on a balance of probabilities,
that
such loss occurred. That does not mean the plaintiff is required to
prove the loss with a mathematical precision – however
–
the plaintiff is required to place before the court all the evidence
reasonably available to enable the court to qualify
the damages and
make an appropriate award in his favour.
There is merit in
Mr
Dane's
contentions in this regard. In order to claim compensation
for patrimonial loss, a plaintiff must discharge the
onus
of
proving, on a balance of probabilities, that such loss has indeed
occurred. That does not necessarily mean that the plaintiff
is
required to prove the loss with mathematical precision —
however, the plaintiff is required to place before the Court
all the
evidence reasonably available to enable the Court to quantify the
damages and to make an appropriate award in his favour.
As was
pointed out by Berman J in
Aaron's Whale Rock Trust v Murray &
Roberts Ltd and Another
1992 (1) SA652 (C) at 655l-656E;
“The Court must not be faced with an exercise in guesswork;
what is required of a plaintiff is that he should put before
the
Court enough evidence from which it can, albeit with difficulty,
compensate him by an award of money as a fair approximation
of his
mathematically unquantifiable loss. That this is so appears from the
well-known passage from the judgment of Stratford J
in
Hersman v
Shapiro & Co
1926 TPD 367
at 379, quoted with approval
by Diemont JA in
Esso Standard SA (Pty) Ltd v Katz
1981
(1) SA 964
(A) at 970E,
viz
:
'Monetary
damage having being suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is very little more
than an estimate; but even so, if it is certain
pecuniary damage has
been suffered, the Court is bound to award damages. It is not so
bound in the case where evidence is available
to the plaintiff which
he has not produced; in those circumstances the Court is justified in
giving, and does give, absolution
from the instance. But where the
best evidence available has been produced, though it is not entirely
of a conclusive character
and does not permit of a mathematical
calculation of the damages suffered, still, if it is the best
evidence available, the Court
must use it and arrive at a conclusion
based upon it'.”
There
must of course be sufficient evidence before the Court for it to be
in a position to make a proper assessment of damages,
for
“... it is not competent for a Court to embark upon conjecture
in assessing damages where there is no factual basis in evidence,
or
an inadequate factual basis, for an assessment, and it is not
competent to award an arbitrary approximation of damages to a
plaintiff who has failed to produce available evidence upon which a
proper assessment of loss could have been made”,
per Rose Innes AJ in
Monumental Art Co v Kenston Pharmacy (Pty)
Ltd
1976 (2) SA 111
(C) at 118E. See also
Mkwanazi v Van
der Merwe and Another
1970 (1) SA 609
(A) at 630.
“Thus where evidence is available to a plaintiff to place
before the Court to assist it in quantifying damages, and this
is not
produced, so that it is impossible for the Court to do so, or there
is no, or quite insufficient evidence which can be produced
by an
unfortunate plaintiff, he must fail...”
[24] As regards what balance of probability entails, the
following was stated in
Ocean Accident and Guarantee Corp. Ltd
v Koch
1963 (4) SA 147
at 159 B-C
“… That seems
to me to present no difficulty, since the degree of proof required is
a court of law is not “absolute
science: but merely (this being
a civil case) a balance of probability; see
West Rand Estates
Ltd v New Zealand Insurance Co. Ltd.
1925 AD 245
at page 263.
As to balancing of probabilities, I agree with the remarks of
Selke
J
in
Govern v Skidmore
1952 (1) SA 732
(N) at page 734
namely:
“…
…
in finding facts or making inferences in
a civil case, it seems to me that one may, as Wigmore conveys, in his
work on
Evidence 3
rd
ed, paragraph 32
, by balancing
probabilities select a conclusion which seems to be more natural, or
plausible, conclusion from amongst several conceivable
ones, even
though that conclusion may not be a reasonable one.”
[25] During cross-examination by
Mr Paterson
for
the defendant, the following unfolded regarding particulars of work
done by the plaintiff mostly prior the collision:
He worked for one
Rickey
skimming and painting
for about one month.
Leon
–
skimming for a couple of
days.
Supa-kwik – painting.
Golden Fountain – skimming ceiling.
Jacqui
–
skimming.
Tertia – skimming and painting.
After
the collision worked for
Mr
Tait
–
painting and earned R250.00 per day, painting.
[26]
In his evidence in chief, he stated that at the time of the collision
he had been working for Starwanda, painting “RDP”
houses
earning R500.00 per house.
[27]
Apparent from plaintiff’s as well as
Doctor
Whitehead’s
evidence,
skimming pays more than a painting job.
Whitehead’s
report and
subsequently the actuarial report were premised on plaintiff having
done predominantly skimming work. This is however
not supported by
plaintiff’s own evidence. He appears to have done painting and
skimming work interchangeably if not more
painting than skimming.
Even the occupational therapist
Ms
Ansie Van Zyl
in
her report, at page 10 thereof, where she lists jobs undertaken by
the plaintiff, there is no mention of skimming. Only painting
jobs
are listed.
[28]
On the evidence before me, being plaintiff’s own evidence,
figures used for compiling the relevant expert reports cannot
be
accurate. They clearly do not paint the true position of what type of
work was predominantly done by the plaintiff.
[29]
There is no evidence to gainsay plaintiff’s evidence that he
was self-employed at the time of the collision. Even though
defendant
disputes the base figures upon which the expert reports regarding the
quantum of loss of income and earning capacity,
no evidence was
placed before me by defendant to suggest how much plaintiff actually
earned. Be that as it may, plaintiff’s
own evidence does not
show that his jobs comprised mostly / predominantly of skimming work.
[30]
In his evidence,
Doctor
Whitehead
stated
that plaintiff’s earnings can be compared to earnings for
semi-skilled individuals working in the informal labour
market. The
instructions given to the actuary by defendant’s attorneys were
based on the premise that plaintiff was a semi-skilled
worker. The
figures for semi-skilled workers are set out in the
Quantum
Yearbook 2016 by Dr Robert J Koch
.
In my view a figure slightly higher than the one given by the
actuaries in their latter report will be appropriate. Slightly higher
to provide for the undisputed fact that plaintiff did some skimming
and such work is more specialized than painting and earns him
more
than painting jobs.
[31]
Mr Niekerk
for the plaintiff urged me not to deduct the amount of R23 000.00
received by the plaintiff during a six month period comprising
of a
disability grant received from the Department of Social Development.
This was a period after the collision. Reliance for this
submission
was placed on
Dikeledi
Alice Modibedi obo Ishmael M Modibedi v The Road Accident Fund
unreported Case No 45626/13
.
Gauteng Division
Pretoria 18/11/2015.
[32] The abovementioned matter was concerned with the
question whether a disability grant can be a basis for calculation of
plaintiff’s
loss of support / earning. The plaintiff in this
matter was claiming for loss of support against the Road Accident
Fund in her
personal capacity as well as on behalf of her minor child
following the death of her husband and father of the minor child in a
motor vehicle collision. At the time of his demise, the deceased was
receiving a disability grant.
[33]
In dismissing the claim, the court in
Modibedi
declared that a disability grant is not an income
for
purposes of suing for loss of support
.
[Emphasis provided]
[34] I am inclined to agree with
Mr Paterson
that
the
Modibedi
matter is distinguishable from the present
matter. This matter is not concerned with a claim for loss of support
(in respect of
a dependant) but a claim for loss of earnings by the
person who received the disability grant (the plaintiff in this
case). According
to the
Social Assistance Act no 13 of 2004
(Section 9)
, a person is eligible for a disability grant if he or
she
(a) … …
(b)
Is, owing to a physical or mental disability, unfit to obtain by
virtue of any service, employment or profession the means needed
to
enable him or her to provide for his or her maintenance.
[35]
It is not clear why plaintiff only received the disability grant for
only six months. In my view, it will be appropriate to
deduct the
amount received by way of a disability grant from the award for loss
of earnings and earning capacity especially in
view of the fact that
it was received as a result of the disability arising from collision
in question. The grant may not have
been equal or close to what
plaintiff earned in his uninjured state. The difference will be
supplemented / compensated for by the
award to be made in this
matter.
[36]
The next aspect to be dealt with is the degree of the contingency to
be applied. It is trite that contingencies cover a wide
range of
considerations which may vary from case to case, such as taxation,
early death, saved travel costs etc. There are no fixed
rules as
regards general contingencies. See
Koch
– The Quantum Yearbook 2011 at 104
.
An allowance is also made in this regard for unforeseen contingencies
for errors in the estimation of future earnings and other
hazards of
life – including whether conditions that may have an effect on
a person’s capacity or ability to work.
Mr
Niekerk
argued for
a combined contingency allowance of 15%. On the other hand
Mr
Paterson
submitted
that 40% allowance being 10% for past loss of earnings and 30% for
future loss of earnings. He argued that the construction
industry is
a difficult one. That plaintiff was at the lower level in this
industry relying on small jobs and subcontracts not
being an
established big company / corporation. I am not persuaded that the
circumstances of this matter required that a higher
contingency
allowance should be made even though plaintiff did not submit any
records to back or support his evidence of how much
he earned. Not
even copies of agreements he alleged would be signed before a police
officer. That “uncertainty” has
been factored into the
consideration of the award to be made. In my view, the appropriate
deduction to be made for contingency
in respect of loss of income
should be 20%.
[37] Accordingly the following order will issue:
1. The Defendant shall pay to the Plaintiff the sum
of R520 000.00 in respect of general damages (being R650 000.00 less
20%).
2. The Defendant shall pay to the Plaintiff the sum
of R1 800 000.00 less 20% in respect of loss of earnings and earning
capacity.
3. Interest shall accrue on the aforesaid amount at
the rate of 9% per annum from fourteen (14) days after the date of
this order
to date of payment.
4. The Defendant shall furnish the Plaintiff with an
undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund
Act, No. 56 of 1996
, to pay to the Plaintiff 80% of the costs of
future accommodation in a hospital or nursing home, or the treatment
of, or the rendering
of a service to, or the supplying of goods to
the Plaintiff, as a result of the injuries sustained by him in the
motor vehicle
collision which occurred on 23 March 2013 in the
district of Port Elizabeth, and the seq uelae thereof, after the
costs have been
incurred and upon proof thereof.
5. The Defendant shall pay the Plaintiff’s
taxed party and party costs, such costs to include:
5.1 The costs of the photographs;
5.2 The reasonable and necessary qualifying expenses
of the following expert witnesses, if any:
(a) Dr P A Olivier;
(b) Dr F Rank;
(c) Ansie van Zyl;
(d) Dr Peter Whitehead;
(e) Ian Meyer; and
(f) Alex Munro.
6.
The Defendant shall be liable for interest on the taxed costs at the
legal rate of 9% per annum from 14 days after
allocator
to date of payment.
______________
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff
:
Adv: Niekerk
Instructed
by
:
McWILLIAMS & ELLIOTT INC
152 Cape Road
Mill Park
PORT ELIZABETH
Tel.: 041 – 582 1250
Ref.: MIP/rf/W64962
For
the Defendant
:
Adv: Paterson
Instructed
by
:
KETSE NONKWELO INC.
100 Cape Road
Mill Park
PORT ELIZABETH
Tel.: 041 – 484 2709
Ref.: Ms Nonkwelo/an/bo9336/RAF
Date
Heard
:
8 and 9 February 2016
Date
Reserved
:
9 February 2016
Date
Delivered
:
4 August 2016
[1]
Quantum of Damages 2007 (5) Case No. 5622/98 B4-1 at 23.