About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 150
|
|
Supra v Road Accident Fund (910/2016) [2023] ZAFSHC 150 (25 April 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:
910/2016
In
the matter between:
QUINTON
SUPRA
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT BY:
MOLITSOANE, J
HEARD ON:
18 NOVEMBER 2022
DELIVERED ON:
25 APRIL 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 15H00 on 25 APRIL 2023.
[1] This is
an action for damages arising out of bodily injuries suffered by the
plaintiff in a motor vehicle collision on
16 January 2015. On 28
March 2017 the court held that the defendant was liable for 100% of
the plaintiff’s proven or agreed
damages. The claim for future
hospital and medical expenses were also finalised. The claim for
general damages was rejected by
the Health Professions Council of
South Africa.
[2] In these proceedings
the court is only called upon to adjudicate the claim for past and
future loss of income. Central to this
issue is the contention
regarding the Plaintiff’s pre-morbid career path.
[3] The
plaintiff served and filed numerous medico legal reports. At the
hearing of this action, the parties agreed to submit
the report of
the plaintiff’s psychiatrist, Dr Shevell as well as the joint
minutes between the orthopaedic surgeons, clinical
psychologists and
occupational therapist as undisputed evidence.
[4] In the joint minutes,
the orthopaedic surgeons, Drs Oelofse and Bogatsu agree that the
plaintiff was 38 years old when he was
involved in an accident. They
further agreed that during the accident the plaintiff sustained a
neck and back injury with residual
pain. Dr Oelofse opined that the
plaintiff sustained a neck injury
in Atlanto axial
instability
and C4-C7 spondylosis, a united T12 fracture with adjacent level
spondylosis and psychological trauma. Both surgeons
opine that the
injuries sustained had a profound impact on the plaintiff’s
amenities of life and will continue to do so in
the future.
[5] Both
orthopaedic surgeons opine that the accident and accompanying
injuries would not have any detrimental effect on
the plaintiff’s
life expectancy.
[6] Dr Oelofse is of the
opinion that the plaintiff is now an unfair competitor in the open
labour market. That he must be accommodated
in a light duty and
spinal friendly working environment. He opines that he (the
plaintiff) must not be allowed to do physical labour.
On the other
hand, Dr Bogatsu opines that the orthopaedic injuries have not
resulted in significant losses of living capacity,
employment
capacity, amenities, independence and enjoyment of life. Both experts
are in agreement that the injuries did not result
in a whole person
impairment(WPI) of 30 % or more. Dr Oelofse is of the view that the
Plaintiff qualifies under the narrative test,
while Dr Bogatsu opines
that he does not qualify. In this regard, Dr Bogatsu is supported by
the HPCSA who also found that the
Plaintiff’s injury did not
qualify as serious.
[7] The occupational
therapists, Mesdames Grobler and Moagi also compiled their joint
minutes. These experts agree that the plaintiff
lacks the functional
capacity to meet the physical demands of manual labour with light,
medium, heavy and very heavy demands, thus
excluding him from meeting
the physical demands of his previously functional position, i.e. as
an Electrical Technician. Both agreed
that the plaintiff is best
suited for sedentary type work with tasks which allows the
implementation of postural adjustments and
standing rest breaks to
accommodate his spinal symptoms.
[8] In consultation with
Dr Shevell the plaintiff informed the doctor that he joined the
military where he became a paramedic. After
this he was worked at
Bosana Diamonds Ltd in Sierra Leone as a clinical manager. He
returned to South Africa where he later took
employment with Net
Care. He later left to join ER21 in Bloemfontein. He also worked in
Afghanistan as a paramedic.
[9] The Plaintiff
testified that he was an acting leasing auditor in the employ of PRC
Utility Management. He further testified
about his studies and
vocational training. That he, inter alia, qualified as an advanced
operational medic care practitioner and
flight medic assistant. This
qualification equipped him to render paramedic assistance in
helicopter and/ or airplanes.
[11] In 2011 he was
recruited to work as an ops medic in Afghanistan where he earned
$8000 per month. He testified that he worked
in a war zone although
he did not work on the front line. From time to time they found
themselves at the firing end. Between 2011
and 2012 he did three
stints of duty in Afghanistan. During his last stint of duty, he
enrolled for a diploma at Exercise Training
Academy(ETA) in order to
skill himself with regard to the musculo skeletal system of the human
body. Part of his curriculum obliged
him to have practical
experience. For this purpose, he was employed at Super Sport Health
and Adventure Club for about 9 months.
[12] From August
2013 until August 2014 he was unemployed. It was during August 2014
that he obtained employment with PEC
Utility Management as an
electrical technician.
[13] Dr Evert Jacobs
prepared 3 medico legal reports and also testified in these
proceedings. He testified that his third report
is a culmination of
the previous two reports. The report repeats the qualifications and
work experience of the plaintiff. Dr Jacobs
states the following with
regard to the plaintiff’s pre and post morbid career
intentions; that the plaintiff was satisfied
with his employer and
job; that he was looking for more job opportunities oversees as he
has the qualifications and experience.
That he felt restricted after
the accident. That he knows he cannot pursue any jobs in the
paramedic environment. All his
efforts through the years to qualify
himself is down the drain. He cannot revert to the career as a
paramedic.
[14] Dr Jacobs postulated
an uninjured career in two scenarios. The first scenario is based on
the current employment of the plaintiff
as a technician. According to
Dr Jacobs, in this first scenario, pre-morbidly, the plaintiff earned
R167 292 per annum. He
also received R107 overtime per hour. He
was also part of the pension fund.
[15] Post morbidly, on
the first scenario, the plaintiff was able to earn an amount of
R188 304 per annum. He also received
a contribution of R502 per
month for a pension fund and R143 per month for a group life fund. Dr
Jacobs states that from Koch Quantum
Yearbook 2017…that the
income of R188 304 in the corporate sector falls on the
Patterson B3/3 level(semi-skill).
[16] In the second
scenario Dr Jacobs postulates that the plaintiff would not be able to
work as a paramedic again. With regard
to income overseas, he
postulates that the going rate is about $400 per day (about R5172 per
day as at 6 September 2017. That the
plaintiff was paid for 7 days
while working oversees and also paid for days spent in South Africa.
[17] In both
scenarios, Dr Jacobs opines that the plaintiff would have been able
to work in any of those two scenarios without
restriction until he
reached the age of 65. He however opines that in the second scenario,
post morbidly, the plaintiff would be
able to perform only sedentary
duties.
[18] The evidence of the
experts irrefutably establish that the plaintiff’s earning
capacity has been impaired and this has
resulted in a loss. The court
in
Dippenaar
v Shield
[1]
said the following:
“
In our
law, under the
lex
Aquilia
,
the defendant must make good the difference between the value of the
plaintiff’s estate after the commission of the delict
and the
value it would have had if the delict had not been committed. The
capacity to earn money is considered to be part of a
person’s
estate and the loss or impairment of that capacity constitutes a
loss, if such loss diminishes the estate. This
was the approach in
Union Government (
Minister
of Railways and Harbours) v Warneke
1911
AD 657
at 665 where the following appears:
‘
In later
Roman law property came to mean the
universitas
of the plaintiff’s rights and duties, and the object of the
action was to recover the difference between the
universitas
as it was after the act of the damage, and as it would have been if
the act had not been committed( Greuber at 269). Any element-
of
attachment or affection for the thing damaged was rigorously
excluded. And this principle was fully recognised by the law of
Holland.”
[19] The enquiry into
damages for loss of earning capacity is by its nature speculative.
[2]
The court in
Oosthuizen
v Road Accident Fund
[3]
gave a useful summary of case law on contingencies and I refer
to it 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.”
[20] It is
undisputed that the plaintiff is entitled to a claim for loss of
earnings. The plaintiff contends that he is entitled
to be
compensated as postulated in scenario two of the actuary while the
defendant argues that he should be compensated on scenario
one. It is
clear that the dispute regarding which scenario the plaintiff has to
be compensated has everything to do with the probability
of the
plaintiff’s pre-morbid career path. There appears to be no
dispute with regard to the calculations by the actuary,
including the
percentage of contingencies to be applied.
[21] The plaintiff is a
qualified paramedic with skills such as an operational medic
assistant. He is also a qualified advanced
operational medical care
practitioner and flight medical assistant. This latter qualification
allows him to provide medical care
assistance in helicopters and
aeroplanes. From 2004 to 2007 he worked for the South African Defence
Force as an Operational Emergency
Care practitioner. From 2007 to
2009 he worked in Sierra Leone for Bosana Diamonds Ltd as a clinic
manager.
[22] He thereafter came
to South Africa and in 2010 he worked for Netcare in Colesburg as an
intermediate paramedic. While working
in Colesburg he met his wife
and moved with her to Bloemfontein where he worked for ER24 also as
an intermediate paramedic.
[23] in 2011 he was
recruited on a contractual basis to work as an operational medic in
Afghanistan. This work entailed working
in war zones. He testified in
cross examination that his work in Afghanistan was very dangerous and
he could be killed anytime.
While in Afghanistan he started a two
year course with Exercise Training Academy in order to enrich his
knowledge with regards
to musculo skeletal system of the human body.
He never finished the course.
[24] From October 2013 to
July 2013 he was employed at Super Sport Health and Adventure Club.
He was thereafter unemployed for the
better part of 2014 until he
took employment with PEC Utility Management as an electrical
technician. Because of the injuries he
sustained and the fact that
the work of an Electrical Technician required a fair amount of
physical excursion, his employer accommodated
him in a sedentary
position as an acting leasing auditor.
[25] When this court is
called upon to adjudicate on the probability of the uninjured career
path of the plaintiff the court has
to look at the evidence adduced.
It is undisputed that the plaintiff was a paramedic who had skilled
himself with other qualifications
in his chosen field. While he was
in Afghanistan he also enrolled for a diploma to enrich his knowledge
with musculo skeletal system.
[26] He contends that it
had always been his intention to go and work and earn higher salary
in war zones. The evidence reveal that
the plaintiff worked in
Afghanistan for about eleven months with intermittent periods of
leave. He had worked in Afghanistan on
three different periods during
the material time. It is his evidence that the first time he went to
work in Afghanistan was motivated
by the desire to get married and
consequently to establish a family.
[27] The evidence reveal
that his last contract in Afghanistan was on 28 June 2011. After the
termination of the contract he worked
for Super Sport Health and
Adventure Club. He became unemployed for the better part of 2014 and
thus remained not working for about
a year. He took employment as an
electrical technician I accept that the salary in war zones was more
lucrative as according to
him, he earned about $8 000 per month.
[28] During the two and
half years that he had returned to South Africa he chose to work in
other disciplines outside of the paramedic
work. Even when he was
unemployed he chose not to go and work as a paramedic. Instead he
chooses a vocation in completely different
direction. His explanation
as to why he did not do any paramedic work is attributed to his
studies. The mere fact that the plaintiff
had the necessary
qualifications cannot on its own be an indication that he wanted to
perform paramedic in war zones.
[29] Much as he
made a roundabout turn in the vocations he chose subsequent to
returning from Afghanistan, I cannot ignore
the following. That the
first time he went to Afghanistan the intention was to have money in
order to get married. That on the
last stint in Afghanistan he
enrolled for a two-year diploma in order to enrich his knowledge with
regards to musculo skeletal
system of the human body. In my view this
illustrates his passion for paramedic work. I accept that he did not
complete the course
but that in its own is no proof that he does not
intend to complete the same.
[30] That he is
sufficiently skilled and qualified to work as a paramedic and flight
medical assistant is beyond doubt. The skill
which is scares. He had
previously worked oversees for significant periods and has expressed
the wish to return. This is undisputed.
His natural career is that of
a paramedic and there is currently no impediment in terms of the law
that can prevent him to work
oversees. He worked in a dangerous war
zone and one can infer that his military background most probably
equipped him for the kind
of work he did oversees. The jobs that he
is passionate about are still in existence. I cannot find that he had
completely decided
that he was not going to return to the work
oversees as contended by the defendant.
[31] The injuries and the
sequelae thereof are not dispute. The impact of the injuries is also
not in dispute. Having regard
to all the evidence I am
satisfied that the amounts used in the calculation by the actuary and
the allowances made for the contingencies
have been properly made. I
am of the considered view that the total loss suffered by the
plaintiff in respect of loss if income
is R3 692 500.00
ORDER
[32] The following order
is issued:
1. The defendant is
liable for payment to the plaintiff in the sum of R 3 692 500
(Three million six hundred and ninety
two thousand five hundred
Rands) in respect of the plaintiff’s claim for past and future
loss of income resulting from a
motor vehicle collision that occurred
on
16 January 2015
.
2. The defendant to pay
the plaintiff’s taxed or agreed party and party costs until the
date of this order, including but
not limited to the costs set out
hereunder:
2.1. The reasonable
preparation / qualifying / accommodation / travelling and reservation
fees and expenses (if any) of the
following experts, and the costs
relating to the plaintiff attending their medico legal examinations:
2.1.1. Dr JJ
Schutte (general practitioner)
2.1.2. Dr LF
Oelofse (orthopaedic surgeon)
2.1.3. Dr DA Shevel
(psychiatrist)
2.1.4. Ms M Grobler
of Rita van Biljon Occupational Therapists
2.1.5. Ms M Coetzee
(clinical psychologist)
2.1.6. Dr EJ Jacobs
(industrial psychologist);
2.1.7. Munro
Forensic Actuaries.
2.2. The costs of
senior counsel.
2.3. The following
witnesses are deemed necessary witnesses
2.3.1 Mr S Walters
2.4. The payment
provisions in respect of a foregoing are as follows:
2.4.1 Payment of the
capital amount shall be made without set-off or deduction, within 180
(hundred and eighty) calendar days from
date of the granting of this
order, directly into the trust account of the plaintiff’s
attorneys of record by means of electronic
transfer, the details of
which are the following:
Honey Attorneys
- […]
Bank -
[…]
Branch Code
- […]
Account No -
[…]
Reference - […]
2.5. Payment of the
taxed or agreed costs shall be made within 180 (hundred and eighty)
days of taxation, and shall likewise
be effected into the trust
account of the plaintiff’s attorney.
2.6. Interest shall
accrue at 9% (the statutory rate per annum), compounded, in respect
of:
2.6.1 the capital of the
claim, calculated 14 (fourteen) days from date of this order.
2.6.2 the taxed or
agreed costs calculated 14 (fourteen) days from date of taxation,
alternatively date of settlement of such
costs.
By order of this court
P.E. MOLITSOANE, J
Appearances:
For
the Plaintiff
Adv.
PJJZietsman
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
For
the Defendant:
Ms
Bornman
Instructed
by:
The
State Attorney
BLOEMFONTEIN
[1]
1979(2) SA 904(AD).
[2]
Southern
Insurance Association v Bailey N.O. 1984(1) SA 98(AD) on page 113G.
[3]
2015JDR 1717 (GJ).