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[2023] ZAFSHC 102
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Ralph v Road Accident Fund (3069/2018) [2023] ZAFSHC 102 (3 February 2023)
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
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 3069/2018
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
K
RALPH
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
11 OCTOBER 2022
DELIVERED
ON:
03 FEBRUARY 2023
This
judgement was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date and time for hand-down is deemed to be 10H00 on 3 FEBRUARY 2023.
[1]
This is an action for damages arising out of bodily injuries suffered
by the plaintiff in a motor vehicle
collision on 30 December 2017.
The issues in dispute have been narrowed to one unresolved issue as
will become apparent later in
this judgment.
[2]
At the inception of the trial I was informed that the following
issues are no longer in dispute:
a)
The defendant conceded the merits and accepted liability for
negligence at 100% in favour of the
plaintiff;
b)
The defendant undertook to provide an undertaking in terms of section
17(4)(a) of the Road Accident
Fund Act in respect of the plaintiff’s
future medical expenses;
c)
The parties agreed to accept all reports and the opinions of the
experts including all collateral
information obtained by experts from
different sources as well as the factual evidence contained therein
including hearsay;
d)
With regard to the contingencies to be applied the parties
agreed as follows:
Past
loss of income (relying on the report of Johan Sauer, the actuary, as
a basis for agreeing on different contingencies to be
applied).
i.
A
contingency deduction of 10% for both pre-morbid as well as
post-morbid past loss of income was to be applied;
ii.
A
total amount of R75 402.60 was in terms of the above calculation
agreed upon for the pre-morbid scenario. The parties agreed that
this
calculation translates in the total loss of past earnings of
R760 524.00.I however disagree with their agreement as according
to me the calculation should translate to a total loss of
R678 623.40. [ R754 026.00 – R75 402.60=
R678 623.40]
iii.
A
total amount of R39 792.20 was in terms of the above calculation
agreed upon for the post-morbid scenario which translates
to a total
loss of past earnings of R 358 129.80.
iv.
The
total past loss is therefore R320 493.60.
Future
loss of earnings (relying on the report of Johan Sauer, an Actuary,
as a basis for agreeing on different contingencies to
be applied.)
v.
A
contingency deduction of 15% for the pre-morbid loss of future income
was to be applied;
vi.
A
total amount of R931 932.75 was in terms of the above
calculation agreed upon for the pre-morbid scenario. The parties
agreed
that this calculation translates in the total loss of future
earnings for the pre morbid scenario of R5 280 952.25.
[3]
In these proceedings this court is only called upon to adjudicate the
issue of contingencies to be applied
for future loss now that the
accident has happened as well as the claim for general damages. The
Counsel for the plaintiff is of
the view that this court should apply
a contingency deduction of 25% post morbid while Counsel for the
defendant submits that the
proper contingency deduction to be applied
on the post morbid scenario was 15%.
[4]
The following background information is relevant: The plaintiff was
36 years old at the time of the accident.
He was a mechanic. On 30
December 2017 when the accident happened he was a passenger.
According to the orthopaedic surgeon, Dr
Oelofse he sustained spinal
injuries (cervical and thoracic spine), non- orthopaedic injuries
(head and chest injuries and lower
leg injury).
[5]
Dr Oelofse also noted the following upon studying the radiological
report of Burger Radiologist Inc. dated
18 July 2019: A disc space
narrowing in respect of the cervical spine at C5-C6 level. In respect
of the dorsal spine there is a
burst fracture present of T11
vertebral body with mild retropulsion and narrowing of the spinal
canal and widening of the pedicles.
He also noted compression
fractures of T7 vertebral body. He opines that there was also
adjacent level disc damage to the affected
fractures. He diagnosed a
C5-C6 disc injury with chronic headaches, pain, spasms, radicular
symptoms on both arms and C5-C6 spondylosis.
He further diagnosed a
united T7 and T11 fracture with chronic pain and spasms, chronic pain
syndrome and adjacent level spondylosis.
[6]
Dr Oelofse is of the opinion that a high probability exist that the
plaintiff would endure chronic pain for
the rest of his life. He
opines that the plaintiff had a probability of more than 50% to
require neck surgery and a probability
of 25% to 35% to require
adjacent level surgery. He is convinced that the plaintiff has a
definite possibility to require thoracic
surgery.
[7]
With regard to the impact of the injuries on the day to day life of
the plaintiff, Dr Oelofse opines that
the thoracolumbar spine
injuries have had a profound impact on the plaintiff’s
amenities of life, productivity and working
ability and will continue
to do so in the future. With reference to employment, he is of the
view that the plaintiff must be accommodated
in a permanent light
duty or spinal friendly environment. He also opines that in this
environment, provision must be made for ten
years’ early
retirement.
[8]
In his report Dr Labuschagne, a neurosurgeon, confirms that the
claimant informed him that he sustained a
back, facial and head
injury. He classified the head injury “as a mild diffuse
traumatic brain injury without focal components”.
According to
him, the plaintiff reported cognitive and neuropsychological symptoms
following the injury that may change his employability.
[9]
Luna Greyling, an occupational therapist noted that the plaintiff
presented with consistent protective behaviour.
According to her, the
plaintiff limited trunk flexion and rotation to guard his spine. As a
result, he places additional strain
on his lower limbs. His
thoracolumbar back pain and adjusted movement patterns impeded him
from reaching his maximum capacity during
performance of tasks.
According to her the plaintiff presented with postural abilities and
mobility to sit on a frequent basis
with intermittent rest periods to
alleviate the strain on his thoracolumbar back by alternating between
postures.
[10]
Ms Greyling opines that when one considers the plaintiff’s
level of education, skills training and working as a
specialised
mechanic, and his work experience in predominately manual work
environment, plaintiff is not an equal competitor in
the open labour
market within his residual category of work as opposed to his
uninjured peers.
[11]
Mr Ben Moodie, an industrial psychologist sketched the career history
of the plaintiff as follows: He was a semi-skilled
mechanic employed
by Jet Sport at the time of the collision. He earned R10 000 per
month. He was entitled to a 13
th
cheque. After the
accident, he returned to his work. At the end of February 2018 he
resigned as he was no longer able to perform
his work.
[12]
He also generated additional income by doing private jobs over the
weekends. In May 2020 he was retrenched due to the
impact of Covid
19. On 4 January 2021 he secured employment as a Store Manager. He
opined that taking into account the plaintiff’s
age as well as
the collateral information obtained from his current employer, a
possibility existed that the plaintiff “would
still have been
able to enjoy career progression in his work life.”
[13]
Ben Moodie further opines that the plaintiff’s functional work
capacity to perform physically demanding work has
been greatly
compromised and like all other experts, accepts that he would never
be able to return to his pre-accident levels of
functioning.
According to him, “his job choices have been truncated and he
would always be significantly impaired. He can,
therefore, be
regarded as an unequal competitor in the open labour market”.
[14]
In the assessment for damages the court may have regard to past
awards. The previous awards may serve as useful guides
in awarding
damages but they can hardly be solely relied upon. In this instance
the correct approach is to have regard to all the
facts of the case
and determine the quantum of damages for such facts.In
Road
Accident Fund v Marunga
[1]
the
court said the following:
“
This
court has repeatedly stated that in cases in which the question of
general damages comprising pain and suffering, disfigurement,
permanent disability and loss of amenities of life arises a trial
court in considering all the facts and circumstances of a case
has a
wide discretion to award what it considers to be fair and adequate
compensation to the injured party...”
[15]
In
Mashigo
v Road Accident Fund
[2]
the
following was said
:
"[10]
A claim for general or non-patrimonial damages requires an assessment
of the plaintiff's pain and suffering, disfigurement,
permanent
disability, and loss of amenities of life and attaching a monetary
value thereto. The exercise is, by its very nature;
both difficult
and discretionary with wide-ranging permutations. As will be
illustrated herein later, it is very difficult if not
impossible to
find a case on all four with the one to be decided. The oft-quoted
case of Southern Insurance Association v Bailey
NO
1984
(1) SA 98
AD
confirmed that even the Supreme Court of Appeal had difficulties in
laying down rules as to how the problem of an award for general
damages should be approached. The accepted approach is the "flexible
one" described in Sandler v Wholesale Coal Suppliers
Ltd
1941
AD 194
at
199, namely: the submissions were "The amount to be awarded as
compensation can only be determined by the broadest general
considerations and the figure arrived at must necessarily be
uncertain, depending on the Judge's view of what is fair in all the
circumstances of the case"."
[11]
Of course, awards in cases that show at least some similarities or
comparisons are useful guides, taking into account the current
value
of such awards to accommodate the decreasing value of money. See
inter alia: SA Eagle Insurance Co v Hartley
[1990]
ZASCA 106
[1990] ZASCA 106
; ;
1990
(4) SA 833
(A)
at 841 D and the practical work of The Quantum Yearbook by Robert J
Koch which includes tables of general damages awards annually
updated
to cater for inflation.
[12]
In respect of the issue of comparable cases and the guidance provided
thereby, the Supreme Court of Appeal has stated in Protea
Assurance
co Ltd v Lamb
1971
SA 530
at
536 A - B: "Comparable cases, when available, should rather be
used to afford some guidance, in a general way, towards assisting
the
Court in arriving at an award which is not substantially out of
general accord with previous awards in broadly similar cases,
regard
being had to all the factors which are considered to be relevant in
the assessment of general damages. At the same time,
it may be
permissible, in an appropriate case, to test any assessment arrived
at upon this basis by reference to the general pattern
of previous
awards in cases where the injuries and their sequelae may have been
either more serious or less than those in the case
under
consideration".
[16]
The parties referred me to various case law to bolster their
respective cases. In particular the plaintiff relied heavily
on
Mkhonta
v RAF.
[3]
The claimant in that case sustained an injury of the lumber spine,
cervical spine, intra articular fracture of the left wrist and
left
crista aliaca as well as a minor concussive head injury. The court
awarded the claimant R950 000.00(according to Counsel
an
equivalent of R1 166 000.00 in 2022) as fair and reasonable
compensation. It is submitted by Counsel for the plaintiff
that based
on this decision and other case law referred to me, a fair and
reasonable compensation for the plaintiff would be an
award of
R800 000 for general damages.
[17]
On the other hand it is submitted on behalf of the defendant that a
fair and reasonable compensation to award in this
case was an amount
of R400 000 for general damages. Counsel for the defendant also
referred to a plethora of authorities in
this regard. All the cases
Counsel for the defendant relied upon deal with soft tissue injuries.
The cases referred to by Counsel
for the defendant offer little
guidance to this court. Apart from dealing with soft tissue injuries
and not fractures similar to
those of the plaintiff, the case law
referred to, does not deal with the mild brain injury sustained by
the plaintiff.
[18]
Having regard to the past awards and the facts and circumstances of
this case an amount of R600 000 will be adequate
compensation for
general damages herein.
[19]
The enquiry into damages for loss of earning capacity is by its
nature speculative.
[4]
As
indicated above the parties are in agreement that a 15% contingency
deduction should be applied for the past loss. Mr Sauer,
whose report
is relied upon as a basis for the contingency deduction to be applied
prepared a report based on 20% and 30 % of such
deduction.
[20]
The court in
Oosthuizen
v Road Accident Fund
[5]
gave a useful summary of case law on contingencies and I refer
extensively as follows:
“
Matters
which cannot otherwise be provided for or cannot be calculated
exactly, but which may impact upon the damages claimed, are
considered to be contingencies, and are usually provided for by
deducting a stated percentage of the amount or specific claims.
(
De
Jongh v Gunter
1975(4) SA 78 (W) 80F).
Contingencies include any
possible relevant future event which might cause damage or a part
thereof or which may otherwise influence
the extent of the
plaintiff’s damage. (
Erdmann v SANTAM Insurance Co Ltd
1985 3 SA 402
(C) 404-405; B
urns v National Employers General
Insurance Co Ltd
1988 3 SA 355
(C) 365).
In a wide sense
contingencies are described as “
the hazards that normally
beset the lives and circumstances of ordinary people
”. (
AA
Mutual Insurance Association Ltd v Van Jaarsveld
1974 4 SA 729
(A);
Van der Plaats v SA Mutual Fire & General Insurance Co
Ltd
1980 3 SA 105
(A);
Southern Insurance Association Ltd v
Bailey
1984 1 SA 98
(A) 117). Contingencies have also been
described as “
unforeseen circumstances of life
”.
(
De Jongh v Gunther
1975 (4) SA 78
(W) 80F).
The percentage of the
contingency deduction depends upon a number of factors and ranges
between 5% and 50%, depending upon the facts
of the case. (
AA
Mutual Association Ltd v Maqula
1978(1) SA 805 (A) 812;
De
Jongh v Gunther
1975(4) SA 78 (W) 81, 83, 84D;
Goodall v
President
1978(1) SA 389 (W) 393;
Van der Plaats v SA Mutual
Fire & General Insurance Co Ltd
1980(3) SA 105(A)
114-115A-D).
Contingencies are usually
taken into account over a particular period of time, generally until
the retirement age of the plaintiff
(
Goodal v President Insurance
Co Ltd
1978 1 SA 389
(W) 393;
Rij NO v Employers’
Liability Assurance
1964 (4) SA 737
(W);
Sigournay v Gillbanks
1960 2 SA 552
(A) 569;
Smith v SA Eagle Insurance Co Ltd
1986
2 SA 314
(SE) 319).
Often, what is described
as a “
sliding scale
” is used, under which it is
allocated a “1/2% for year to retirement age, i.e 25% for a
child, 20% for a youth and
10% in middle age”. (
Goodall v
President Insurance Company Limited
1978(1) SA 398(W) and
Road
Accident Fund v Guedes
2006(5) SA 583(A) 588D-C. Likewise, see
Nonwali v Road Accident Fund
(771/2004) [2009] ZAECMHC 5 (21
May 2009) (para 23))
Colman J provided a
useful exposition Burger
v Union National South British Insurance
Co
1975 (4) SA 72
(W) 75
of the approach to be adopted by
the Court:
“
A
related aspect of the technique of assessing damages is this one; it
is recognized as proper, in an appropriate case, to have
regard to
relevant events which may occur, or relevant conditions which may
arise in the future. Even when it cannot be said on
a preponderance
of probability that they will occur or arise, justice may require
that what is called a contingency allowance be
made for a possibility
of that kind. If, for example, there is acceptable evidence that
there is a 30 percent change that an injury
to the leg will lead to
amputation, that possibility is not ignored because 30 percent is
less than 50 percent and there is therefore
no proved preponderance
of probability that there will be an amputation. The contingency is
allowed for by including in the damages
a figure representing a
percentage of that which would have been included if amputation had
been a certainty. That is not a very
satisfactory way of dealing with
such difficulties, but no better way exists under our procedure.”
But the difficulty with
this approach was appreciated by Margo J in
Goodwill v President
Insurance Co Ltd
1978(1) SA 389 W at 392H:
“
In
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art of
science of
foretelling the future, so confidently practiced by ancient prophets
and soothsayers, and by modern authors of a certain
type of almanac,
is not numbered among the qualifications for judicial office”.
The advantage of applying
actuarial calculations to assist in this task was emphasised in the
leading case of
Southern Insurance Association Ltd v Bailey
1984 1 SA 98
(A) 113H-114E , where the Court stated :
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative
…
..
All that the Court can
do is to make an estimate, which is often a very rough estimate, of
the present value of the loss. It has
open to it two possible
approaches. One is for the Judge to make a round estimate of an
amount which seems to him to be fair and
reasonable. That is entirely
a matter of guesswork, a blind plunge into the unknown. The other is
to try to make an assessment,
by way of mathematical calculations, on
the basis of assumptions resting on the evidence. The validity of
this approach depends
of course upon the soundness of the
assumptions, and these may vary from the strongly probable to the
speculative. It is manifest
that either approach involves guesswork
to a greater or lesser extent. But the Court cannot for this reason
adopt a non possumus
attitude and make no award.
……
..
In a case where the
Court has before it material on which an actuarial calculation can
usefully be made, I do not think that the
first approach offers any
advantage over the second. On the contrary, while the result of an
actuarial computation may be no more
than an ‘informed guess’
it has the advantage of an attempt to ascertain the value of what was
lost on a logical basis;
whereas the trial Judge’s ‘gut
feeling’ (to use the words of appellant’s counsel) as to
what is fair and
reasonable is nothing more than a blind guess.”
[21]
It is undisputed that the plaintiff sustained serious injuries. It is
also undisputed that before the accident, as a
mechanic he performed
physically demanding work which required inter alia, the ability to
carry heavy objects, to stand long hours
and to bend every now and
then. The experts agree that his work functionality has been greatly
impaired. The undisputed evidence
before court is that he can no
longer return to his previous job as a mechanic.
[22]
His job choices have been truncated. Post the accident he is
currently a Store Manager. This can be understood that he
would never
be able to perform work as a mechanic due to his diminished work
capacity. It is settled that contingencies are an
important control
mechanism to adjust the loss suffered to the circumstances of the
individual claimant in order to achieve equity
and fairness to the
parties.
[23]
The submissions of Counsel for the defendant reminds one of the
remarks of Robert Koch in his Newsletter,
[6]
where he says that he is often requested to apply ‘normal
contingencies’…. ‘
that
in theory there is no such a thing’
as
normal contingencies. He, however, says the RAF claims handlers
;
“
do
have a predilection for deducting 5% for past loss and 15% for future
loss, regardless of the realities. This formula they apply
to both
claims for loss of earnings and claims for loss of support. It seems
fair to say that if there is such a thing as ‘normal
contingencies’ then it must be 5% for past and 15% for future
loss.”
Kubushi
J in Radebe v Road Accident Fund
[7]
also says:
“
Contingencies
are normally calculated at 5% for past loss and 15% for future loss”
[24]
The question of contingencies falls squarely in the discretion of the
court as to what is fair and reasonable. Every
case is to be judged
on its own merits. In my view
,
regard
being had to the injuries and the sequelae thereof, the proper
contingencies to be applied for future loss would be 20%
which will
represent an amount of R475 545.00. The total future loss would
thus be R3 698 506.85.
[25]
Costs are in the discretion of the court. Counsel implored this court
to grant the Plaintiff costs for the submission
of settlement
proposal. According to him, he has a standing agreement with the RAF
that they would bear costs for the settlement
proposals sent. Ms
Booysen, for the defendant knew nothing of this agreement. I will not
grant this request. In my view the costs
should follow the cause.
ORDER
[26]
The following order is issued:
1.
The defendant is liable to pay 100% (Hundred percent) of the
plaintiff's proven or agreed
damages;
1.2
The defendant shall pay the plaintiff the sum of
R4 298 506.85[
Four million two hundred and ninety-eight thousand five hundred and
six Rands and eighty-five cents];
set out as follows:
LOSS OF EARNINGS:
R 3 698 506.85
GENERAL DAMAGES:
R 600 000.00
TOTAL:
R 4 298 506.85
1.3
The defendant shall pay the abovementioned amount into the
plaintiff’s Attorneys trust account:
The
plaintiff's attorney's trust account details are as follows:
ACCOUNT
HOLDER:
VZLR
INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH
CODE:
632005
TYPE
OF ACCOUNT:
TRUST ACCOUNT
ACCOUNT
NUMBER:
[....]
REFERNCE:
MAT92603
1.4
In the event that the defendant does not, make payment of the capital
amount, the defendant will be liable for payment
of interest on such
amount at the prescribed rate compounded and calculated fourteen days
from date of this order.
2.
2.1
The defendant shall furnish the plaintiff with an Undertaking, in
terms of Section 17(4)(a) of Act 56 of 1996, in
respect of future
accommodation of the plaintiff in a hospital or nursing home or
treatment of or the rendering of a service or
supplying of goods of a
medical and non-medical nature to the plaintiff (and after the costs
have been incurred and upon submission
of proof thereof) arising out
of the injuries sustained in the collision which occurred on
13
December 2017.
3.
3.1
The Defendant to pay, the Plaintiff’s taxed or agreed party and
party costs.
3.2 The
reasonable qualification and reservation fees of all the plaintiff’s
experts of whose reports had been
furnished to the defendant:
1.
Dr. LF Oelofse – Orthopaedic Surgeon
2.
L Greyling - Rita van Biljon – Occupational Therapists
3.
B Moodie – Industrial Psychologist
4.
Dr J.J. Labuschagne – Neurosurgeon
5.
L Grootboom - Neuropsychologist
6.
J Sauer – Actuarial Scientist.
P.E.
MOLITSOANE, J
Appearances:
For
the Plaintiff: Mr
Marx
Instructed
by: Du
Plooy Attorneys
BLOEMFONTEIN
For
the Defendant: Ms
Booysen
Instructed
by: The
State Attorney
BLOEMFONTEIN
[1]
[2003]
2 AII SA148 (SCA) at 23.
[2]
2120/2014[2018] ZAGPPHC 539(13 June 2018).
[3]
(20703/12)[2018] ZAGPPHC 471(29 March 2018).
[4]
Southern
Insurance Association v Bailey N.O. 1984(1) SA 98(AD) on page 113G.
[5]
2015JDR 1717 (GJ).
[6]
(No 50, June 2003) page 2.
[7]
2013(6a4) QOD220(GNP) para 17.