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2024
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[2024] ZAGPPHC 180
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Maseko v Road Accident Fund (84770/2014) [2024] ZAGPPHC 180 (28 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case number:
84770/2014
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: YES
DATE: 28/02/2024
In the matter between:
PHINDILE LUCY
MASEKO
PLAINTIFF
And
THE ROAD ACCIDENT
FUND
DEFENDANT
JUDGEMENT LEAVE TO
APPEAL
Leso AJ,
1.
The
plaintiff brought leave to appeal the order and the judgment
delivered on 25 October 2023 the reasons for which were provided
17
January 2024. The application is brought in terms of Section
16(1)(a)(i) read with Section 17(1)(a)(i) or (ii) of the Superior
Courts Act 10 of 2013 (“the
Superior Courts Act&rdquo
;) and in
terms of Rule 49(1)(b) of the Uniform Rules of the Court.
2.
SUMMARISED
GROUNDS FOR LEAVE ARE APPEAL
I.
that
the court rejected the plaintiff's claim for past loss of earnings
because the plaintiff was not employed and had no salary
at the time
of the accident;
II.
That
the court erred in changing the undisputed evidence for future income
in applying 15% contingencies on the pre-accident future
income only
as a percentage in arriving at the amount of R 309 855.00 in
compensation for future loss of earnings.
III.
The
Court found that the projections are based on inconsistent
information because the postulations are based on the undisputed
evidence by De Vlamingh
IV.
The
court erred in finding that Pre-and post-accident income is the same
failing to consider undisputed evidence by De Vlamingh
that the
plaintiff will suffer 10-year delay post-accident in reaching her
career ceiling which will result in actual future loss
as calculated
by the Actuary.
V.
That
the court should have applied a moderately higher post-accident
contingency deduction to the future income as calculated by
Potgieter
in arriving at a fair and reasonable amount for compensation for
future loss of earnings.
VI.
The
court erred in finding that no proof of the plaintiff's
qualifications was provided.
BRIEF SUMMARY OF
SUBMISSIONS
3.
According
to the plaintiff's counsel in recent years there has been a tendency
for the defendant to argue that no claim of past
loss exists for
unemployed injured individuals and the postulated post-accident
future income should be considered the same as
pre-accident future
income without laying basis thereof. The approach of the courts in
entertaining those submissions was incorrect
and flawed. This
judgment and the legal principles created will have a serious impact
on all future litigation.
APPLICABLE LAW AND
DISCUSSION
4.
The
application is based on
Section
16(1)(a)(i) read with
section 17(1)(a)(i)
or (ii) of the
Superior
Courts Act 10 of 2013
Section
17(1)
of the
Superior Courts Act. Before
the amendment the law on
appeal provided that leave to appeal may only be granted if the judge
or judges concerned think that there
is a compelling reason why the
appeal should be heard, such as conflicting judgments on the matter,
the decision will have a practical
effect or result. The test then,
was simply
whether leave to
appeal should be granted was that another court
may
come to a different conclusion,
now
the bar has been set higher and the test to grant leave to appeal is
whether another
court
would
come to a different conclusion and whether
the appeal would have a reasonable
prospect of success.
5.
The
plaintiff relied on section 17(1)(a)(i) of the Superior Court Act
which provides as follows:
‘
(1) Leave to
appeal may only be given where the judge or judges concerned are of
the opinion that—
(a)
(i)
the
appeal would have a reasonable prospect of success; or
there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b) the decision
sought on appeal does not fall within the ambit of section 16 (2)
(a); and
(c) where the decision
sought to be appealed does not dispose of all the issues in the case,
the appeal would lead to a just and
prompt resolution of the real
issues between the parties
.'
6.
The
standard
of whether there are any reasonable prospects of success in an appeal
is still maintained. If the court finds that
the alleged
misdirection can be said to be sufficiently weighing to justify a
conclusion that if leave is granted the applicant
has prospects of
success, then the application must succeed. The applicant relied on
the authority of
Smith
v S(475/10) [2011] ZASCA 15
‘issue to be decided is whether the appellant has a reasonable
success on appeal and not the merits of the appeal’.
On the
first ground of leave to appeal,
I
am of the view that the applicant has a reasonable prospect of
success on appeal and that another court will arrive at a different
conclusion as I had found that according to the evidence before me,
in 2014 when the accident occurred, the plaintiff was unemployed.
I
could not accept the plaintiff's counsel's argument that the
plaintiff suffered past loss of income because pre-accident the
plaintiff was unemployed and had no salary or income.
7.
During
the trial the court raised the issue of information contained in the
report compared to the information from the school which
indicated
that the applicant was volunteering at the school for six years
earning R1000 while the other reports indicated that
the applicant
earned a salary R2000. At the time the counsel for the
applicant insisted that the applicant was employed however
during the
application for leave to appeal the counsel admitted that the
plaintiff was a volunteer and concluded by arguing that
the
inconsistent amounts could be cured by application of contingencies.
Having said the above, I find that another court
may find that
past of loss of earnings should not have been rejected in totality.
8.
On
the second ground, the counsel referred to the authority of
Dippenaar
v Shield Insurance Co Ltd 1979(2) SA 90(A)
that the assessment and quantification of damages is trite and
involves a comparison between the difference between the plaintiff
estate but for and having regard to the accident. I find that the
applicant will succeed before the different could as as because
the
principle is that the defendant must make good the difference between
the value she would have had if the accident had not
occurred. The
postulation by Vlamingh is that pre-accident.
9.
The
applicant has prospects of success in the recalculation of loss of
earnings because the calculation might change after consideration
of
past loss and calculation of future loss of earnings. According to
counsel the calculations provided for actual loss were different
from
the calculation of the court where I had found that
the
plaintiff's claim in the amount of R 1 177 584.00 had no basis
or simply put, was not justified because of a lack of collateral
information on the reports and the inconsistent information regarding
the employment history of the plaintiff. I accept the expert
report
that the plaintiff will struggle in the workplace due to back
injuries which might get worse Consequently, I found that
the
appropriate award for loss of earning capacity would be an amount of
R 309 855 after applying a 15% contingency on the
amount of
R2 065 704.
10.
According
to the plaintiff, the above calculation was based on misdirection by
the court because the evidence and calculation by
the Actuary, which
calculations were based on the postulations of Vlamingh were admitted
into evidence. I do not agree with the
applicant's counsel that once
evidence is admitted the court cannot interrogate and criticize the
evidence, which was the case
in this matter however I am of the view
that another court would find differently on this issue.
11.
I
do not accept that the plaintiff is entitled to the amount claimed
currently because he is not entitled to impose the contingencies
to
be applicable on the calculations as the counsel submitted because
the application of the contingencies is the prerogative of
the court,
in consideration of the postulations by the experts. I however find
that another Court may arrive at a different conclusion
about the
finding that the qualifications were not submitted however the
absence or presence of the qualification was not the only
consideration for the court to arrive at its decision with regard to
contingencies applicable.
I NOW MAKE THE FOLLOWING
ORDER:
ORDER
1.
Leave
to appeal to the full Court of this division is granted.
2.
Costs
of this application are costs in the appeal.
JT LESO
Acting Judge of the
High Court
Delivered: the reasons
for the judgment were prepared and authored by the judge whose name
is reflected herein and is handed down
electronically and by
circulation to the parties/their legal representatives, by email and
by uploading it to the electronic file
of this matter on Caselines.
Date of Hearing:
28 February
2024
Date of Order:
28 February
2024
FOR THE PLAINTIFF
Adv APJ Bouwer
Durell@sdjinc.co.za