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South Africa: North Gauteng High Court, Pretoria
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2023
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[2023] ZAGPPHC 68
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Adv C Cawood NO obo Walter Charles Nell v Road Accident Fund [2023] ZAGPPHC 68; 65104/2020 (10 February 2023)
HEADNOTE:
LOSS
OF INCOME – PROOF
Motor
collision – Self-employed gardener, painter and repairman –
General damages well supported by medical
evidence – Not
proving that self-employed – No proof of income, bank
statement, qualification towards profession,
tax documents or
invoices – Failing to show loss of earnin
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO. 65104/2020
(1) REPORTABLE:
YES/NO
(2) OF INTEREST
TO OTHER JUDGES: YES/NO
(3) REVISED:
YES/NO
DATE: 10/02/2023
In
the matter between:
ADV
C CAWOOD NO obo WALTER CHARLES NELL PLAINTIFF
AND
THE
ROAD ACCIDENT
FUND DEFFENDENT
JUDGMENT
MAKHOBA
J
1.
The plaintiff instituted
an action against the defendant for damages suffered as the result of
injuries sustained in a motor vehicle
accident that occurred on the
17 February 2019.
2.
The merits were not
settled however the plaintiff managed to prove the merits100% in his
favour. The defendant was not represented
in court on the 16
th
January 2023 when the
matter was set down for trial. Counsel for the plaintiff asked the
court to grant default judgement in favour
of the plaintiff. Counsel
for the plaintiff addressed the court and referred to his heads of
argument.
3.
The plaintiff filled the
following medical-legal reports of the following experts:
3.1 Dr K Le
Ferre – Psychiatrist
3.2 Dr JS
Sagor- Orthopedic surgeon
3.3 R De with
– Clinical and Neuro Psychologist
3.4 M Le Roux
– Occupational therapist
3.5 E Auret-
Besselaar-Industrial psychologist
3.6 W
Boshoff-Actuary.
4.
With regards to the claim
for general damages I am of the view that the claim is well supported
by medical evidence and the case
law.
5.
The only issue remaining
is whether this court after hearing counsel and reading the papers
should grant the amount as requested
on behalf of the plaintiff in
respect of loss of earnings. During the proceedings I did ask counsel
to address me on all issues
to the best of his ability because I am
going to reserve judgement.
6.
The evaluation of the
amount to be awarded for loss of income does not involve proof on a
balance of probabilities. It is a matter
of estimation. The general
approach is to posit the plaintiff, as he is proven to have been in
his uninjured state and then to
apply assumptions to his state with
the proven injuries and their sequela.
7.
I am called upon to
perform a delicate judicial duty in that I must decide what is the
reasonable amount the plaintiff would have
earned but for the
injuries and the consequent disability. Furthermore, I must determine
the plaintiff’s future income, if
any, having regard to the
disability.
8.
The occupational
therapist says the following at paragraph 6.3 of 018-71 on case-lines
“
6.3
PRE-ACCIDENT EMPLOYMENT
a)
He was self-employed,
performing mainly painting, gardening and reparations of appliances
such as microwaves, fridges washing machines,
DVD players,
televisions etc.
b)
He worked
independently and had sufficient work to keep himself busy on a daily
basis.
c)
The reparations of
smaller items were done at his own house. Customers delivered these
to his door, then he carried it inside. Large
appliances were usually
repaired at the client’s house, smaller appliances were
repaired at a table, whist large ones stood
on the floor. He thus
worked in sitting, standing forward bending (in sitting and
standing), crouching and kneeling. Sound dexterity,
strength and
vision were required. He used pliers, screwdrivers, a soldering iron
etc.
d)
The time spend on
repairs varied, depending on the appliance and fault. It however
typically took him an average of 1½ hours
to perform a repair.
e)
He often had to
purchase parts. Has either travelled by taxi or walked if the store
was nearby and the part small.
f)
Whilst doing
gardening, he was on his feet for the entire day and performed
occasional to frequent, prolonged low-level work (crouch,
kneel,
bend). Heavy physical work was also required whilst working with a
spade or garden fork, or lifting and carrying heavy loads.
g)
He painted in and
outdoor walls of houses, performing constant standing work with
occasional to frequent ladder negotiation elevated
or low work
(crouch, kneel, bend), depending on the task a hand on a given day.
He handled paint buckets between 11-201.
h)
Whilst painting or
doing gardening, he used the client’s tools and equipment.”
9.
It is trite that the onus
rests on the plaintiff to proof his case on the balance of
probabilities see
Pillay
v Krishna
1946
SA 946.
Thus
therefore the duty is on the plaintiff to produce evidence that
because of the injury, he has suffered loss of income.
10.
I am of the view that the plaintiff failed to show on preponderance
of the probabilities that he was self-employed because he
failed to
provide the following:
10.1 File any
proof if income and loss statement
10.2 bank
statement
10.3 No proof
of any qualification towards his profession.
10.4 He
failed to file any tax documents or IRP5’s
10.5
He failed to file any
invoice issued to him or by him.
11
In my view the plaintiff
failed in his duty to satisfy the court that he has lost any earnings
or stands to lose any earnings as
a consequence of the motor vehicle
accident in question.
12
I therefore make the
following order:
12.1 The
defendant is liable for 100% of the plaintiff’s proven general
damages.
12.2 The
defendant shall pay to the plaintiff an amount of R1500 000 (one
million five hundred thousand rands only)
for general damages.
12.3 The
plaintiff’s claim for loss of earnings is dismissed.
12.4 A trust
must be created for the benefit of the patient.
12.5 Cost of
suit
D.
MAKHOBA
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES
For
the Plaintiff: Advocate
CPJ Strydom
Instruction:
Adendorff
Attorneys
For
the Defendant: NONE
Instructed
by:
Date
heard: 16/01/2023
Date
delivered: 10/02/2023