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[2023] ZAFSHC 49
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Ndwene v Road Accident Fund (386/2021) [2023] ZAFSHC 49 (10 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
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
Number 386/2021
Reportable:
yes/no
Circulate
to other Judges: yes/no
Circulate
to Magistrates: yes/no
In
the matter between:
JACOB
DITABE
NDWENE
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
CORAM:
BERRY, AJ
HEARD
ON:
17 JANUARY 2023
DELIVERED
ON:
This
judgment was handed down electronically by email to the parties'
representatives and by release to SAFLII. The date and time
for
hand-down is deemed to be 15h00 on 10 February 2023.
JUDGEMENT
BY:
BERRY,
AJ
JUDGEMENT
[1]
Plaintiff was a passenger in a vehicle which was involved in an
accident on 12 June
2019. The vehicle collided with a barrier on the
bridge and drove off the bridge. The Plaintiff was 26 years old at
the time of
the accident and is currently 30 years of age.
[2]
Plaintiff suffered from a fracture of the cervical spine (C5),
laceration of his upper
gums, a chess injury with multiple rib
fractures and tenderness of his back muscles.
[3]
The Defendant conceded merits and provided an undertaking in terms of
Sec 17(4)(a)
of Act 56 of 1996 for future medical expenses.
[4]
By agreement between the parties, a Draft Order was handed to Court.
In terms of which
the Defendant accepted 100% liability for the
Plaintiff’s damages and agreed to pay the Plaintiff R450 000.00
for general
damages. Other aspects, such as costs and the payment of
experts are also dealt with in the Order. I do not repeat the whole
of
the Draft Order as it was made an order of Court.
[5]
Loss of earnings is the only matter outstanding. The parties agreed
that they would
submit written heads of argument.
[6]
The Defendant accepted the medical expert reports of the Plaintiff it
was agreed that
the Plaintiff did not have to testify.
[7]
The Plaintiff claims R889 443.00 for past and future loss of
earnings, alternatively
earning capacity.
[8]
The following expert reports for the Plaintiff were admitted.
- Dr RS Kahn (General Medical
Practitioner)
- Dr HET van den Bout (Orthopaedic
Surgeon)
- Letitia Reyneke (Occupational
Therapist)
- Susan van Jaarsveld (Industrial
Psychologist)
- GJ Mellet (Actuary)
[9]
The Defendant did not submit any expert reports.
[10]
The Plaintiff
failed Grade 12 in 2015 and then went to
Bible-school in 2016. He joined the Youth-Ministry at a Church and
did some peace-jobs
at the Ministry such as painting, building,
fixing pipes and cleaning the yard for the next three years. He was
not formally employed
and only paid for the work that he did. He
has
not been able to gain employment since the accident.
[11]
The
Plaintiff was not previously involved in an accident.
[12]
The Plaintiff was taken to hospital where X-rays indicated an
anterior and posterior avulsion
fracture of C5.
[13]
He was put in a hard collar and put on bed rest.
[14]
On 15 June 2019 a C5 cortectomy and anterior discectomy with fusion
of the C4-C5 disk with the
plate extending to C3, was performed on
the Plaintiff. He received physiotherapy whilst he was in hospital.
[15]
The Plaintiff was discharged on 25 June 2019 using a cervical collar
for six weeks.
[16]
The Plaintiff could not attend physiotherapy as an out-patient due to
his lack of funds for transport.
[17]
The Plaintiff experiences headache and pain in his neck when he
performs physical strenuous tasks.
The pain becomes worse when he
moves his neck a lot or keep his neck in a fixed position for long
periods.
[18]
The neck pain prevents the Plaintiff from walking more than one mile,
from sitting for more than
an hour and restricts his travel to two
hours.
[19]
The Plaintiff cannot stand for more than one hour and struggles to
lift and carry heavy objects.
[20]
The pain impacts on the Plaintiff’s functionality when he is
required to lift heavier objects,
walk some distance, run, or bend.
[21]
The Occupational Therapist states that the Plaintiff is not able to
participate in the same level
of occupational activities as prior to
the accident.
[22]
Physical strenuous work aggravates his pain and contributes to poor
physical endurance.
[23]
The Plaintiff is not able to lift what 90% of the population is able
to lift every thirty minutes
during an eight-hour working day.
[24]
The Plaintiff has functional difficulties walking medium distances
over even terrain, going up
and down stairs repetitively, crouching
under low obstacles, doing repetitive squats and trunk flexion and
lifting objects over
15 kg up to waist level or carrying 12.5 kg over
a short distance.
[25]
He can safely lift a capacity which requires light-duty work, with
some tasks of medium duty
work such as in a stationery position, but
not all tasks of medium duty work.
[26]
There is a 29% possibility that he will have to undergo a follow-up
cervical spine fusion every
ten (10) years. For every operation he
will be off for a period of two months. The Orthopaedic Surgeon
states that the Plaintiff’s
working life will be shortened by a
period of three to five years.
[27]
The Plaintiff aspired to become a firefighter. The Industrial
Psychologist, Susan van Jaarsveld, is of the opinion that he would
not have been able to fulfil this dream due to his socio-economic
circumstances prior to the accident.
[28]
The Orthopaedic Surgeon states that the Plaintiff will struggle to
secure suitable employment
with his qualifications, considering his
physical limitations.
[29]
The Industrial Phycologist states that considering the Plaintiff’s
qualifications and experience,
that he would only be able to perform
work of a light physical nature. She is of the opinion that the
Plaintiff will not be able
to find employment in a
clerical/administrative environment.
[30]
The Occupational Therapist states that the Plaintiff’s ability
to find future employment
is limited considering the Plaintiff’s
qualification and limited work experience doing piece jobs.
[31]
The Defendant did not submit any expert reports but presented
argument based on the expert reports
submitted by the Plaintiff.
[32]
The main issue in dispute is the contingencies that must be applied.
[33]
The Defendant submitted that
the
Plaintiff was 26 years old at the time of the accident and will be
turning 30 years on 27 March 2023.
[34]
The Plaintiff completed Grade 11 during 2014 at the age of 21 years
old. He failed Grade 12.
[35]
The Defendant pointed out that the Plaintiff stated to Dr Khan that
he has never worked before
the accident, yet he attached an Affidavit
to the RAF1 form wherein he states that he worked as a gardener,
doing piece jobs, and
earned approximately R1000.00 per month.
[36]
The Defendant referred to the report of Orthopaedic Surgeon where the
Plaintiff provided information
that he worked as a gardener at his
local church and did not earn a fixed income.
[37]
The Defendant referred to the report of Occupational Therapist
wherein the Plaintiff provided
the following information regarding
his occupation at the time of the accident.
Unemployed (did
maintenance piece-jobs but not formally employed). He did some piece
jobs at the ministry in maintenance like painting,
building, fixing
pipes and gardening. He was only paid for the work he did and was not
formally employed.
[38]
The Plaintiff informed the Industrial Psychologist that he earned
R1500.00 per month as a gardener.
[39]
No proof of income could be provided.
[40]
The Plaintiff has not been employed or performed any work since the
accident.
[41]
The Plaintiff informed the Occupational Therapist that he can engage
in all his recreational
activities with some neck pain. He plays
soccer but cannot play for the full duration of a match, due to his
neck pain.
[42]
The Defendant questions the report of Dr Kahn requesting that medical
opinions that resort outside
his field of expertise, should be
disregarded.
[43]
The Defendant also criticise the report of the Occupational Therapist
in that the report was
finalised without her seeing a report from the
Orthopaedic Surgeon.
[44]
The Defendant argues that the Plaintiff has a residual working
capacity and is not totally unemployable,
due to his continued
ability to participate in sport.
[45]
The Defendant argues that the Plaintiff is underweight and that this
contributes to his physical
weakness and inability to perform
strenuous work.
[46]
The Defendant criticise the Industrial Psychologist for not
performing psychometric tests to
assess the Plaintiff’s
cognitive and psychological functioning to determine potential
training prospects.
Loss
of Earnings or Earning Capacity:
[47]
The Defendant submits that higher contingencies should be applied.
[48]
Ms Gouws appearing for the Defendant, argued that a pre-accident
contingency of 15% for Past
Loss of Earnings and 30% for Future Loss
of Earnings must be applied.
[49]
This submission is based on the following grounds:
(a)
South Africa has a high unemployment rate.
(b)
South Africa suffers from low economic growth.
(c)
The Plaintiff would have suffered periods of unemployment in any
event may have
remained reliant on piece jobs with no fixed income.
(d)
The probabilities of the case justify higher contingencies.
(e)
The Plaintiff could have retired earlier than 65 years.
(f)
The Industrial Psychologist does not indicate why the Plaintiff would
have progressed
to an income level between the median and upper
quartile for the
income for unskilled workers.
(g)
On Koch’s sliding scale of 0.5% from the date of accident,
there is 39 years left until the Plaintiff
would retire at sixty-five
years of age, thus bringing the pre-morbid contingency deduction to
19.5%.
[50]
Ms Gouws then argued that a further 30% contingency must be applied
to the post morbid figure
as provision must rather be made for a loss
of earning capacity, rather than a loss of earnings.
[51]
This will equate to a 60% contingency on post morbid loss of
earnings.
[52]
The Defendant argued that Plaintiff’s loss of earnings, before
the application of contingencies,
should be calculated using the past
pre-morbid income of R43 606.00 and a pre-morbid future income of R1
021 797.00, as calculated
by the Plaintiff’s actuary.
[53]
The Defendant contends that to calculate Plaintiff’s probable
pre-morbid income, the following
contingencies should apply:
- a 15%
contingency should be applied to the past pre-morbid income, and
- a 60%
contingency should be applied to future pre-morbid income.
[54]
The Defendant did not present any evidence to lay a basis for this
argument.
[55]
Applying these contingencies give the following result:
Past pre-morbid
income (before contingencies)
R43 606.00
Minus: 15%
contingency deduction
R 6 540.90
NETT:
R37 065.10
Future
Pre-morbid
income
R1 021 797.00
Minus: 60%
contingency
R 613 078.20
NETT:
R 408 718.80
[56]
The Defendant further argues that to determine the Plaintiff’s
loss of income, now that
the accident has occurred, a further 30%
contingency should be applied to future income as the additional
contingency (to make
provision for the eventualities such as stints
of unemployment and the like, because of the injuries) resulting in a
nett future
loss of income of R306 539.10 calculated as follows:
Pre-morbid
future income, less 60% contingency
R 408 718.80
Less: 30% normal
contingency
R 102 179.80
TOTAL
R 306 539.10
[57]
The calculations in the Plaintiff’s actuary report are based
on,
inter alia
, the assumption that Plaintiff would
work until retirement age of 65 and the fact that Plaintiff never
returned to his pre-morbid
employment and has remained unemployed
since.
[58]
The actuary took into account that the Industrial
Psychologist reported that Plaintiff may be “
functionally
unemployable
” and, for purposes of determining his loss of
income in the unemployable state, he assumed that Plaintiff would
remain unemployed
and incur a total loss of income.
[59]
The actuary considered the alternative scenario presented by the
Industrial Psychologist, that
there is a possibility that Plaintiff
may secure employment in the non-corporate sector, earning an income
equivalent to the lower
quartile income for unskilled workers, but
would be most likely be subjected to stints of unemployment which
would increase in
duration as he gets older and that this would
ultimately result in permanent unemployment at the age of 35, with a
total loss of
income thereafter.
[60]
He used this as the basis for an alternative calculation, of loss of
earnings in the event of
employment in the non-corporate sector until
the age of 35.
[61]
Based on the aforesaid – and various other assumptions
contained in his report, he calculated
Plaintiff’s possible
pre-morbid income, before the application of contingencies, as
follows:
Past pre-morbid income
R 43 606.00
Future pre-morbid
income
R1 021 696.00
TOTAL (pre- morbid past and future
income)
R1 065 301.00
[62]
Based on the report of the Industrial Psychologist, the actuary,
calculated that if Plaintiff
was employed in the non-corporate sector
until the age of 35, he would have post-morbid future income of R105
647.00.
[63]
The actuary provided calculations with illustrative contingency
deductions, using the following
contingencies:
Past pre-morbid income (both
scenarios) - 5%
Future pre-morbid income (both
scenarios) - 17%
Future post-morbid income (scenario 2)
- 6%
[64]
The result of the aforesaid is that in respect of the partial
employment scenario, the total
contingency for future post-morbid
income is a total contingency of 23% being applied (17% + 6%).
[65]
The net result of the calculations done by Plaintiff’s actuary
are as follows.
(a) If the
Plaintiff is totally unemployable Plaintiff would suffer a total loss
of earnings in the amount
of R889 433.00.
(b) If the
Plaintiff is employed in the non-corporate sector, until the age of
35, he will suffer a total
loss of R790 112.00.
[66]
Because of the strong positions adopted by both legal
representatives, I deem it necessary to
deal with some of the
principles underlying the application of contingencies.
[67]
In
Southern Insurance Association Limited v Bailey N.O.
1984 (1)
SA 98
(A)
, it was held:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future
…
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. This is entirely a matter
of guesswork, a blind
plunge into the unknown.
The other one 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
… There are cases where the assessment
by the Court is little
more than an estimate; but even so, if it is certain that pecuniary
damage has been suffered, the Court
is bound to award damages.”
[68]
In
Goliath v MEC for Health ZASCA 2014 182 para. [11]
, the
Court held that it is important to bear in mind that in a civil case
it is not necessary for a Plaintiff to prove that the
inference that
she asked the Court to draw is the only reasonable inference. It
suffices for the Plaintiff to convince the Court
that the inference
that he advocates is the most readily apparent and acceptable
inference from several possible inferences.
[69]
Contingency deductions allow for the possibility that the laintiff
may have less than normal
expectations of life and that he/she may
experience periods of unemployment by reason of incapacity due to
illness, accident or
labour unrest or even general economic
conditions.
[70]
Contingencies are the “hazards of life that normally beset the
lives and circumstances
of ordinary people” (
Corbet &
Buchanan, The Quantum of Damages, Vol II 360 at 367.1
), and
should therefore, “by its very nature, be a process of
subjective impression or estimation rather than objective
calculation”
(
Shield Ins. Co. Ltd v Booysen
1979 (3) SA 953
(A) at 965G-H)
.
[71]
In determining contingencies the age of the Plaintiff is one of the
factors to consider. The
younger the victim, the longer the period
over which the vicissitudes of life will operate and the greater the
uncertainty in assessing
the Plaintiff’s likely career path.
[72]
Normal contingencies for which allowance should be made when
calculating pre-morbid income, would
usually include the following:
(a) the
possibility of illness which would have occurred in any event.
(b) inflation or
deflation of the value of money in future.
(c) other risks
of life such as accidents or even death, which would have become a
reality, sooner or later, in any event; (
Corbett & Buchanan,
The Quantum of Damages, Vol I at 514
)
[73]
In
Phalane v Road Accident Fund (48112/2014) [2017] ZAGPPHC 759
(7 November 2017), the Court held:
“
[18] In
the Quantum Yearbook (by Robert Koch, 2017 Edition, p 126) the
learned author points out that there are no fixed rules as
regards
general contingencies. However, he suggests the following guidelines:
‘
Sliding
scale: 0.5% per year to retirement age, i.e., 25% for a child, 20%
for a youth and 10% in the middle age…”
[74]
In
G N v Road Accident Fund (13/30599) [2018] ZAGPJHC 691
(4
December 2018), Justice Opperman expounded the concept of
contingencies as follows:
“
[16]
Where a party contends for a higher than normal contingency, that
party must, of course, adduce facts which render a higher
than normal
contingency factor applicable. The contrary is also true –
where a party contends for a lower than normal contingency,
no
contingency or a positive contingency, the onus would rest on such
party. This follows the trite principle that he who alleges
must
prove.
[17] Insofar as
past loss of earnings is concerned, it is generally accepted, and the
norm to apply, is a 5% contingency deduction.
No argument was
advanced to deviate from this norm.
[18] Support for
what can be considered to be a normal contingency applicable to
future loss of earnings, would be half a percent
for every working
year. Thus, in this instance, a 20% contingency deduction would
constitute the norm over a 40 year period i.e.
to a retirement age of
65.
[19] This
formula should not be followed rigidly in each and every case. The
assessment remains largely arbitrary and dependent
on the Court’s
impression of the case. It is but a starting point.
[20]
Contingencies are not to be viewed as always operating adversely to
the plaintiff. There is often the lost prospect of a marked
improvement in his or her lot.”
[75]
In
Burger v Union National South British Insurance Co
1975 4 SA 72
(W)
75D-G
. at para. [21], the honourable Colman J
explains, as quoted with consent by Corbett JA in
Blyth v Van den
Heever
1980 1 SA 191
(A) 225
, that:
“
How the
court should take account of an uncertain future event in the
assessment of future loss: A related aspect of the technique
of
assessing damages is this one: it is recognised 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 to have been proved, 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 per cent chance that an injury to a leg will lead
to an
amputation, that possibility is not ignored because 30 per cent is
less than 50 per cent 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 would
be a certainty. That is not a very satisfactory
way of dealing with
such difficulties, but no better way exists under our procedure.”
[76]
T
he pre-morbid contingencies (past – and future) of 5%
and 17% applied by Plaintiff’s actuary are appropriate. The
normal
contingency reduction of 5% for past pre-morbid income and 17%
represents the application of the sliding scale of 0.5% per annum
until date of retirement.
[77]
There is no reason why I cannot accept the calculations of the
actuary pertaining to pre-morbid
income (
R1 065 301.00
).
[78]
Counsel for the Plaintiff argued that the
following contingencies should be applied.
- Past pre-morbid
- 5%
- Future pre-morbid - 15%
- Future post-morbid - 15%
[79]
Applying the above contingencies will result therein that the
post-morbid contingency deduction
is 30% in total, giving the
following result:
Pre-morbid
income
R43 606.00
Minus
: 5% normal
contingency
R 2 180.30
SUBTOTAL
A
R41 425.70
Future
pre-morbid
R1 021 696.00
Minus
: 15% normal
contingency
R 153 254.40
SUBTOTAL
R 868 441.60
Less
: 15% future post-morbid
contingency
R 130 266.24
SUBTOTAL
B
R 738 175.36
[80]
The result of applying the aforesaid contingencies is as follows:
Net past loss of income (subtotal
A)
R 41 425.70
Plus
: net past loss of income
(subtotal B)
R738 175.46
TOTAL
R779 601.06
[81]
In
I
E v Road Accident Fund (39925/2016) [2018] ZAGPJHC 559 (21 August
2018)
the
Court applied
a
30% contingency in respect of post-morbid earnings in similar
circumstances for a Plaintiff of similar age and with similar
limitations
in his future employment.
[82]
In
Minnie v Road Accident Fund (5617/2016) [2018] ZAGPPHC 459 (29
March 2018)
the Court also applied a 30% contingency in respect
of post-morbid earnings in similar circumstances for a Plaintiff who
was 38
years of age and with similar limitations in his future
employment.
[83]
In
Khoza v Road Accident Fund
[2019] JOL 46382
(GP)
, the
Plaintiff was a Grade 11 at the time of the accident. He failed Grade
11 examinations, but the reason was unconnected to the
accident. He
also failed Grade 1. He embarked on a N2 course in electrical
engineering but suspended his studies and felt that
he preferred
mechanical engineering which he did eventually complete. He took up
employment and resigned after a month because
he could not cope with
the physical demands working above shoulder height. From a cognitive
perspective, the accident had no effect
on the Plaintiff. His
physical functioning was affected, and he was no longer a competitor
for physical heavy work and there was
a possibility of degenerative
changes. The Defendant argued for a higher than normal pre-morbid
contingency, because of the Plaintiff’s
cognitive disabilities
and a lower post-morbid contingency because it had been said that
from a cognitive perspective the accident
had no effect on the
Plaintiff.
[84]
The Court held that the normal pre-morbid contingencies should be
applied because the Plaintiff’s
physical functioning had been
affected and applied a 30% post-morbid contingency.
[85]
I agree with the submissions of counsel for the Plaintiff.
[86]
In the premises, the following order is made:
1.
The Defendant is ordered to pay the Plaintiff the sum of
R779 601.06
in respect of loss of earnings and earning
capacity.
2.
The Defendant shall pay the abovementioned amount into the account of
the Plaintiff’s
attorney.
BL KRETZMAN INC
TRUST ACCOUNT
Nedbank
Branch
Number:
[....]
Account
Number:
[....]
Reference:
J6498
3.
Is the Defendant does not make payment within 180 days from the date
of this order the Defendant
will be liable to pay interest on the
capital amount at the moratory rate, compounded and calculated 14
days from the date of this
order.
4.
The Defendant is ordered to pay the Plaintiff’s costs for the
preparation of written
heads of argument.
AP
BERRY, AJ
APPEARANCES:
For
the Plaintiff:
Adv. M Louw
Instructed
by:
BL Krestzman Attorneys
c/o McIntyre &
Van Der Post Inc
Bloemfontein
For
the Defendant:
J Gouws
Instructed
by:
State Attorney
Bloemfontein