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2023
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[2023] ZAFSHC 58
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Gwiba v Road Accident Fund (6468/2017) [2023] ZAFSHC 58 (3 March 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
FLYNOTES:
LOSS OF INCOME – HIGH CONTINGENCY
ACTUARIAL
– Loss of income – Contingencies – Spine
injuries causing pain and limited movement – Plaintiff
not
having passed Grade 12 – Had sporadic work and had never
been hired permanently – Job prospects also affected
by poor
economy of country – Contingency deduction of 50%.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 6468/2017
In
the matter between
:
MANDISA
BEVERLY
GWIBA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
MPAMA
AJ
HEARD
ON:
11
OCTOBER 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 11:00 on 03 March 2023.
[1]
The plaintiff was on 29 March 2015 involved in a motor vehicle
accident at Reitz when
a motor vehicle collided with her at work in a
road construction site. As a result of the accident she sustained
some bodily injuries
and instituted this claim under the following
heads:
(i)
Future medical expenses
(ii)
Past and future loss of earnings
(iii)
General damages
[2]
The RAF conceded liability for 100% of plaintiff’s proven
damages.
[3]
The parties have settled general damages at an amount of R 400 000.00
and the
defendant further made an undertaking for future medical
expenses in terms of section 17(4) of Act 56 of 1996. The issues
which
remained unresolved between the parties are that of plaintiff’s
past and future loss of income.
[4]
By agreement between the parties experts’ reports were
presented by way of affidavits
in terms of Rule 38(2) of the Uniform
Rules. In addition the plaintiff testified in support of her claim
and the defendant led
no evidence.
[5]
The plaintiff‘s evidence is as follows: She is 36 years old,
married and a mother
of two children. Her highest level of education
is Grade 12 obtained in 2007 at Thabo Thokoza Secondary School. She
furthered her
studies and obtained a certificate in computer studies.
On 20 February 2015 she was hired by Robs Investment Holdings as a
traffic
controller in a roadwork site at Reitz earning a monthly
salary of R 5 476.65. As a traffic controller she was required to
stand,
walk and bend a lot whilst performing her duties. She was
involved in an accident on 29 March 2015, taken to hospital and
detained
for one day. The plaintiff sustained some injuries on the
spinal cord. As a result of the accident she did not return back to
work
as she felt that she would not be able to cope with her physical
duties. She is currently unemployed; however for a living she braids
hair and charges R 80.00 per client. On average she braids three
clients a week. Before the job at Robs Holdings she was employed
as a
seasonal farm worker for six months in 2013, general assistant at a
local municipality, a cook at school and a domestic worker.
She still
experiences some back pain and treats such with painkillers.
[6]
During cross examination the plaintiff testified that she did not
pass Grade12. She
admitted that she did not disclose to any of the
doctors who examined her that she once worked as a domestic worker.
Her reasons
for doing so were that this was a casual job, her
services were only required once a week and she was only employed
from December
2012 to November 2013. She explained that it was in
2010 when she was employed as a seasonal worker at a farm in
Bethlehem, in
2011 as a cook at a local school, in 2012 volunteered
at a local municipality for 5 months, in 2012 - 2013 as a domestic
worker
and in 2014 - 2015 as a traffic controller. She further
testified that she assumed duties in February 2015 at Robs Holdings
and
got involved in an accident in March 2015. Her employment
contract there was for a year. When she was questioned on why she did
not go back to work after the accident she said there was someone
already employed in her position. The plaintiff later said she
did
not return to work because of her injuries. It also transpired during
cross examination that Robs Holdings closed down the
construction
site few months after the accident. She conceded that she would be
without employment even if she was not involved
in an accident.
EXPERT
REPORTS
[7]
There were a number of medico-legal experts who assessed the
plaintiff and prepared
some reports. The following reports were
handed in on behalf of the plaintiff and they form part of evidence
before this court.
I will now refer to certain salient features of
these reports.
i)
Dr. J.J. Schutte: Independent
Medical Examiner
He
completed a RAF 4. He noted that the plaintiff sustained injuries
with a potential of causing serious long-term impairment or
loss of a
body function.
ii)
Dr. L.F. Oelofetse: Orthopaedic
Surgeon
He
examined the plaintiff on 15 February 2017. The plaintiff at the time
of examination reported that she was experiencing discomfort
and pain
in her mid and lower spine. This resulted in a difficulty to perform
tasks requiring bending forward like putting on socks
and shoes,
driving for long distances and sitting or walking over long periods
of time. He opined that there is radiological evidence
of thoracic
spine – profound local kyphosis with involvement of adjacent
level discs and lumber spine-early asymmetry of
L 1-2 disc. He
further opined that the plaintiff’s condition may require
surgery in future and that she will never be able
to do physical
labour. His conclusions were that the plaintiff ought to be
accommodated in a strict sedentary/light duty position
as determined
by the occupational therapist and must not be allowed to do physical
labour.
iii)
Ms. K. van den Bergh:
Occupational Therapist
Ms
van der Bergh examined the plaintiff on 8 May 2018. She commented
that the plaintiff had difficulty in dynamic positions like
crouching
and kneeling due to pain, stiffness and discomfort in her back. She
opined that the plaintiff has the ability to handle
weight associated
with sedentary work only with frequent breaks being allowed from
sitting.
iv)
Dr. E.J. Jacobs: Industrial
Psychologist
He
examined the plaintiff on 8 May 2018. The plaintiff disclosed to him
her work experience as follows: She was a packer at Maluti
Apple Farm
on a contract of 6 months, a chef at a primary school from 2011 -
2012, an apple picker in 2013 and a traffic controller
at Robs
Holdings and has never worked after the accident. He opined that the
plaintiff will not be able to work in any job exceeding
sedentary
demands, she is not fully suited for physical work as she has sitting
capacity restrictions and can only work limited
hours. He concluded
that since the plaintiff is unemployed she will struggle to find any
form of employment due to limitations
caused by the accident.
v)
Actuarial report by Munro
Forensic Actuaries
The
actuary did actuarial calculations for past and future loss of
income. On his executive summary he mentioned that the information
provided indicated that the claimant was unable to return to work and
expected to remain unemployable in future. He based his calculations
on the fact that the plaintiff earned R 5 477.00 a month at the time
of the accident and would have earned until the retirement
age of 65.
Since the accident the plaintiff had earned no income. According to
the calculations the plaintiff suffered a loss of
R 1 931 190.00
having applied 25% contingency deductions.
[8]
Both parties are in agreement that the plaintiff did suffer some past
and future loss
of income but strongly disagree over contingency
deductions to be applied.
[9]
The plaintiff’s counsel referred the court to the case of
COOTZEE V THE ROAD ACCIDENT FUND
[2021] ZAFSHC 193.
It was
submitted that in consideration of the age of the plaintiff, a 5%
deduction in past loss of earnings and a 20% deduction
should be
applied for future loss of earnings.
[10]
The defendant’s attorney argued that a higher contingency
deduction should be applied.
The court was referred to the following
judgments;
AA MUTUAL INSURANCE ASSOCIATION LTD V MAQULA
1978(1) SA 805(A),
GWAXULA V RAF
(09/41896) [2013] ZAGPJHC
240. It was submitted that due to the nature of the plaintiff’s
employment (sporadic) it will be
proper and correct to provide for a
contingency deduction of 50% in respect of past and future loss of
income.
[11]
It is trite that the plaintiff must prove the extent of her loss and
damages on a balance of
probabilities. With regard to loss of income
the plaintiff must adduce evidence of her income in order to enable
the court to assess
her loss of past and future earnings. In addition
the plaintiff must prove the amount of income she will reasonably
lose in the
future as a result of the injury. The following was
stated in
MVUNDLE V RAF
(63500/2009) [2012] ZAGPPHC 57(17
April 2012) an unreported North Gauteng High Court judgment case:
“
It
is trite that the damages for loss of income can be granted where a
person has in fact suffered or will suffer a true patrimonial
loss in
that his or her employment situation has manifestly changed. The
plaintiff’s performance can also influence his or
her current
job and /or be limited in a number and quality of his or her choices
should he or she decides to find other employment”.
[12]
In order to determine a plaintiff’s claim for future loss of
income the court must compare
what the plaintiff would have earned if
it was not for the accident with what she would likely have earned
after the accident.
In
SOUTHERN INSURANCE ASSOCIATION LTD V BAILEY
NO
1984(1) SA 98 AD it was said:
“
Any
enquiry into damages for loss of earning capacity is to its nature
speculative, because it involves a prediction as to the future
without the benefit of crystal balls, soothsayers, augers or oracles.
All that the court can do is to make an estimate, which is
often a
very rough estimate of the present value of a loss”.
[13]
The plaintiff testified in support of her claim. She gave
contradicting versions as to why she
did not return to work after the
accident. She conceded that at times she would be without employment.
The company that she was
working for at the time of the accident
closed down shortly after the accident and she rightfully so,
conceded that she would find
herself unemployed even if she was not
involved in an accident. The plaintiff had only worked for a month
when she was involved
in an accident. It is not clear whether she was
employed or not shortly before assuming duties at Robs Holdings as
she contradicted
herself regarding when she was employed at Robs
Holdings.
[14]
When the plaintiff was quizzed on why she did not return to work
after the accident she provided
different reasons for not returning
back to work. The plaintiff was asked to explain why she did not
disclose to any of the doctors
who examined her that she had worked
as a domestic worker. She could not provide any valid reason for her
failure to disclose this
information. The evidence of the complainant
reveals that she was doing sporadic work and she has never been hired
permanently
in her lifetime.
[15]
When making an order for future losses, it is expected from the court
to make use of contingency
deductions to provide for any future
circumstances which may occur but cannot be predicted with precision.
[16]
Our courts have accepted that the extent of the period over which a
plaintiff’s income
has to be established has a direct influence
on the extent to which contingencies have to be accounted for. The
longer the period
over which unforeseen contingencies can have an
influence over the accuracy of the amount deemed to be the probable
income of the
plaintiff, the higher the contingencies have to be
applied.
[17]
The actuarial calculations are not binding to this court as the court
has a wide discretion to
award what it considers to be fair and
reasonable compensation.
[18]
The actuarial calculations as they stand are based on a scenario that
the plaintiff will be unemployable
and without any form of income. It
will be incorrect to postulate a zero income for the plaintiff as the
plaintiff can do less
heavy duties and currently she is able to earn
some income braiding hair. Generally hair braiding involves a lot of
physical movement,
one is expected to scrunch or crouch or stand up
when braiding hair. The plaintiff can afford to braid three clients a
week, an
indication that she can still perform some physical duties.
[19]
The company she worked for at the time of the accident was closed
just few months after the accident.
The plaintiff would have found
herself without a job even if she was not involved in an accident.
The kind of work that the plaintiff
did before her employment at Robs
Holdings is unclear. There is uncontroverted evidence that the
plaintiff at certain periods was
without any form of employment.
[20]
Having considered the evidence and submissions made by both parties I
am in agreement with the
defendant’s attorney that the
application of a 50% contingency is appropriate in the circumstances
of the plaintiff after
consideration of plaintiff’s precarious
employment. It is a known factor that our country has experienced an
economic meltdown
which was exacerbated by COVID 19. This would
definitely impact on plaintiff’s chances of finding another job
as she would
be rendered unemployed when Robs Holdings closed down.
[21]
I accordingly make the following order:
1.
The
defendant shall pay to the plaintiff the amount of R 400 000.00 in
respect of general damages.
2.
The
defendant shall pay to the plaintiff the amount of R 999 280.00 in
relation to the plaintiff’s past and future loss of
earnings.
3.
The
payments shall be made by the defendant to the plaintiff within 180
days from the date of this order into the trust account
of the
plaintiff’s attorneys failing which the defendant shall become
liable to pay interest a tempore morae on the capital
amount
aforesaid at a rate of 7% per annum from the date of this order to
date of final payment.
4.
The
defendant shall furnish the plaintiff with an undertaking in terms of
section 17(4) of Act 560f 1996 for payment of 100% of
the for the
future accommodation of the plaintiff in a hospital or nursing home,
or treatment of or rendering of a service or supply
of goods to her,
arising from the injuries sustained by her in the motor vehicle
collision on 29 March 2015.
5.
The
defendant shall pay the plaintiff‘s taxed or agreed party and
party costs until the date of this order including costs
of a
counsel. Such costs shall include the following:
5.1
the
reasonable qualifying fees of the following experts:
5.1.1
Dr. J.J. Schutte
5.1.2
Dr. L.F. Oelofse
5.1.3
Drs. Van Dyk and Partners
5.1.4
Ms. K. van der Berg
5.1.5
Dr. E.J. Jacobs
5.1.6
Munro Forensic Actuaries
6.
The
payments are to be made into the following account:
HONEY
ATTORNEYS TRUST ACCOUNT
NEDBANK
MAITLAND STREET BRANCH, BLOEMFONTEIN
ACCOUNT
NUMBER: [....]
BRANCH
CODE: [....]
REFERENCE:
Y VOSLOO/I26237
MPAMA,
AJ
On
behalf of the plaintiff: Adv.
H.E. de La Rey
Instructed
by: Messrs
Honey Attorneys
Bloemfontein
On
behalf of the defendant: Ms
J. Gouws
Instructed
by: Office
of the State Attorneys
Bloemfontein