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[2023] ZAFSHC 345
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C.V.Z v Road Accident Fund (2867/2013) [2023] ZAFSHC 345 (25 August 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 number: 2867/2013
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
C[…]
V[…] Z[…]
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
23 & 26 MAY 2023
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 25 August 2023 at 14H00.
[1]
On 03 January 2010 the plaintiff was a passenger in a motor vehicle
with registration numbers
and letters
DFG […]
when it
collided with a vehicle with registration numbers and letters
JHJ
[…]
. She sustained a head injury, factures of the left
femur and the right acetabulum with face and shoulder lacerations.
[2] On
17 July 2023 the plaintiff issued summons against the defendant for
damages the plaintiff sustained as
a result of being injured in the
said collision. In the particulars of claim (as amended) the
plaintiff claimed an amount of R5
289 497.91 made up as follows:
2.1
Past
medical and hospital expenses:
R235 582.91
2.2
Future
medical expenses:
R100
000.00
2.3
Past
and future loss of income:
R4 203 915.00
2.4
General
damages:
R750 000.00
[3]
The injuries sustained by the plaintiff including the sequelae
thereof is not in dispute. The
defendant has since conceded the
merits 100% in favour of the plaintiff and thereafter agreed to pay
R700 000.00 (seven hundred
thousand rand) in settlement of the
plaintiff’s general damages and to also undertook to furnish
the plaintiff with the statutory
undertaking in respect of her future
medical and hospital expenses in terms of section 17(4) (a) of the
Road Accident Fund Act
56 of 1996 (“The Act”).
[4]
By agreement between the parties the claim relating to past medical
and hospital expenses was
postponed for later determination and the
only issue that I have to determine is the contingency deductions to
be applied to the
award relating to past and future loss of income.
[5]
According to the plaintiff, that she would have followed the same
career path in the uninjured
scenario up to retirement age of 65
years but due to the injuries she had to resign form her employment
to work in a sedentary
job and will have to retire ten (10) years
earlier. Based on those reasons, a 5% contingency deduction should be
applied with regard
to the determination of the plaintiff’s
pre-morbid past loss, 15% for pre-morbid future loss and 30%
post-morbid future loss
as per the actuarial calculations.
[6]
The defendant disagrees and submits that that there is no justifiable
reason why the plaintiff
would no longer be able to follow her
uninjured career path post-morbid until retirement otherwise, the
defendant suggests that
contingencies of 5% in respect of pre-morbid
past loss of earnings, 35% pre-morbid future loss of earnings and 20%
post-morbid
loss of earnings should be applied.
[7]
The plaintiff testified in support of her case and also called Dr
Everd Jacobs as a witness. What
follows hereunder is the summary of
the evidence led in that regard.
[8]
The plaintiff is a qualified teacher. She grew up and also went to
school in Bloemfontein. During
her school years she also lived in
Vryburg in the North West Province and later Aliwal-North in the
Eastern Cape Province where
her parents operated Wimpy businesses.
Her family ultimately left South Africa and relocated Guernsey in the
United Kingdom where
the plaintiff obtained her Teaching Diploma in
Child Care.
[9]
She began her employment career in 2004 Guernsey where she worked as
a pre-school teacher until
her Visa expired in 2006. She then
returned to South Africa and continued to work as a pre-school
teacher from 2006 to 2007 thereafter
she worked as a Nanny taking
care of a disabled seven-year old child until she met her accident in
January 2010. She was 23 years
old at that time.
[10] As
a result of the injuries, she was hospitalized and underwent various
surgeries to repair the fractures
and debridement of the lacerated
wounds. She only returned to her work after three (3) months but she
subsequently resigned and
went to work at a pre-school Tjokkertjie
Paradys as a teacher. About a year and two months later she bought
the business (Tjokkertjie
Paradys) with her then husband.
[11] In
2015 she relocated to Jeffreys Bay after suffering a miscarriage
followed by a divorce. Whilst in
Jeffreys Bay she decided to
return to Guernsey to be with her parents who owned a restaurant,
Blue Diamond / Fruit Export Company
Ltd (Blue Diamond).
[12] In
order to obtain a working Visa in Guernsey she was required to have a
qualification or experience and
a job offer from a prospective
employer in Guernsey as a result, she decided to pursue a career in
hospitality. She also obtained
a job as a waitress at Nina’s
restaurant with effect March 2016. A year later she was
promoted to manager and during
February 2019 she resigned and
relocated to Guernsey where she was promptly hired by her parents as
a waitress at their Blue Diamond
restaurant from April 2019. Five
months later she was promoted to manager.
[13]
It was her testimony that Blue Diamond restaurant was a busy
restaurant. She worked very long hours from
8am to 5pm, mostly six
(6) days a week and by the end of the day she would be in severe pain
emanating from the injured hip
and the
knee
.
The hip
pain was constant and became worse when lying down and her feet
swelled up as she spent long hours on her feet as a result,
she
resigned from Blue Diamond in July 2021.
She was immediately offered a job as a trainee client executive at an
insurance company
Artex Risk Solutions.
[14]
She has been employed at Artex Risk Solutions since 02 August 2021.
Her duties are mainly deskbound and this
has helped in managing the
pain. Sitting for long hours still poses a challenge for her back
issues but her employers were generous
and have provided her with a
special chair to counter the adverse effects.
[15] Dr
Jacobs is an industrial psychologist. His initial and addendum
reports dated 15 May 2015 and 14 March
2022 respectively are based on
the information he received from the plaintiff and the other relative
experts namely: the orthopaedic
surgeon Dr LF Oelofse, the
occupational therapist Ms H. Meyer and the forensic accountant Mr N.
du Plessis.
[16]
The salient parts of his evidence is: at the time the information was
collated the plaintiff was still self-employed
as manager of her
pre-school business Tjokkertjie Paradys and earning about R10 000.00
per month. The plaintiff did not inform
the experts that she intended
to deviate from her career as an educator and venture into
hospitality. She had explained that her
duties then involved amongst
others, observing and monitoring the children’s play
activities, reading and playing games with
the children, preparing
and serving their meals, cleaning for and after them, driving to pick
them up from school, shopping for
school supplies and also management
of the business which includes supervising the teachers, domestic
workers and attending the
businesses finances and all these
responsibilities are physically demanding.
[17] It
was his testimony that based on the afore-mentioned information, all
the experts opined that had the accident
not occurred the plaintiff
would have probably continued to work as a pre-school teacher/
manager until the age of 65. Pursuant
to the accident, the
plaintiff can still participate in the labour market however due to
the injuries her ability to perform all
the physical tasks that her
careers demand has been curtailed. In addition to the physical
deficits, the plaintiff has also been
left with psychological
distress as she now has a fear of driving. The experts agree that the
plaintiff “must not be allowed
to do physical labour again”
but rather be accommodated in a more sedentary working environment.
[18] He
concluded by stating that the plaintiff’s claim loss of income
only materialized in August 2021
when she changed to a sedentary
working environment at Artex Risk Solutions. She has sustained a loss
of income in the sum of R7 600.00
after tax which represents the
current monthly loss in Rand and it must be calculated monthly from
August 2021 to 14 September
2014 which represents a 10 years’
early retirement duly adjusted for inflation and contingencies.
[19]
Under cross-examination it was put to the plaintiff that the main
reason for selling her business and move
to Jeffreys Bay was because
of the miscarriage and the divorce. He response was that those
factors played a “small part.”
She was also questioned
about her former spouse’ financial contributions into their
erstwhile business whilst Dr Jacobs was
criticized for having
modified his findings in the addendum. His explanation was that he
was entitled to amend his initial report
as and when new facts came
to light.
[20]
That was in short the plaintiff’s evidence, in addition to the
viva voce evidence, documentary evidence
was handed in by concurrence
of both parties and marked as Exhibits: the plaintiff’s proof
employment (payslips) and qualifications
(
Exhibit “A”
).
The reports by the orthopaedic surgeon
(
Exhibit “B”
)
,
the occupational therapist (
Exhibit “C”
),
the forensic accountant
(Exhibit “D”)
and
the industrial psychologist (
Exhibit “E”
).
[21]
The defendant closed its case without calling any witnesses.
[22]
On
the facts germane to this matter, the fact that th
e
plaintiff’s disability has resulted in patrimonial loss as
envisaged in
Rudman
v Road Accident Fund
[1]
is indisputable.
[23]
Contingencies deductions are assessed at the discretion of the court
taking into consideration that each
case must be treated on its own
unique facts including a
wide range
of factors which:
“
...include
such matters as the possibility the plaintiff may in the result have
less than a normal expectation of life; …and
that he may
experience periods of unemployment by reason of incapacity due to
illness or accident, or to labour unrest or general
economic
conditions. The amount of any discount may vary, depending on the
circumstances of each case… The rate of discount
account of
course be assessed on any logical basis: The assessment must be
largely arbitrary and must depend upon the trial judge’s
impression of the case.”
[2]
[24] In
this matter, no evidence has been tendered by the defendant to
gainsay the plaintiff’s version regarding
the calculations of
her loss of earnings as well the income for early retirement as
postulated by her forensic accountant in concurrence
with Dr Jacobs.
[25]
Having regard to the facts of this matter and the entirety of the
plaintiff’s undisputed evidence I
am satisfied that the
contingencies suggested by the plaintiff would fair and equitable
under these circumstances.
[26]
It was argued by counsel for the plaintiff that upon the
determination of the contingencies the matter must
be referred back
to the actuary for recalculation. Relying on
Bain
& Others v the D’Ambrosi,
[3]
counsel
averred that that since the loss of earnings
accrued
in Guernsey in the United Kingdom,
the
conversion of those earnings ought to be calculated
based
on the rate of her Guernsey income
.
I agree.
[27] In
the circumstances, I make the following order:
1.
The plaintiff’s claim for past and future
loss of income is referred to Munro Forensic Actuaries to be
calculated within twenty
(20) days of the date of this order using
the latest exchange rate and applying the following contingency
deductions:
1.1
Pre-morbid
past loss of earnings:
5.00%
1.2
Pre-morbid
future loss of earnings:
15.00%
1.3
Post-morbid
future loss of earnings:
30.00%
2.
Upon receipt of the actuarial calculations the parties are to
approach the court for the
actuarial calculation to be made an order
of court.
3.
The defendant shall pay the costs including the reasonable qualifying
and reservation fees
and expenses (
if any
) of the following
experts:
3.1.
Dr JJ Schutte (general practitioner)
3.2.
Dr FP du Plessis (orthopaedic surgeon)
3.3.
Drs LF Oelofse and MB Deacon (orthopaedic surgeons)
3.4.
Van Dyk & Partners (diagnostic radiologist)
3.5.
Burger Radiologist (diagnostic radiologist)
3.6.
M Joubert (occupational therapist)
3.7.
H Meyer (occupational therapist)
3.8.
N du Plessis (forensic accountant)
3.9.
Dr EJ Jacobs (industrial psychologist)
3.10.
Munro Forensic Actuaries
4.
Payment of the taxed or agreed costs shall be made within 180 days of
taxation into the trust
account of the plaintiff’s attorney:
Honey Attorneys
Trust
Account
Bank
Nedbank,
Maitland street
BLOEMFONTEIN
Branch code
110 234
00
Account No.
110 […]
Reference
HL
Buchner/vch/J02670
5.
The plaintiff’s claim for past medical and hospital expenses is
postponed to the pre-trial
roll of
27 November 2023.
N.S. DANISO, J
APPEARANCES:
Counsel
on behalf of the plaintiff:
Adv.
P.J.J. Zietsman SC
Instructed
by:
HONEY
ATTORNEYS
BLOEMFONTEIN
Counsel
on behalf of the defendant:
Ms.
C. Bornman
Instructed
by:
STATE
ATTORNEY
BLOEMFONTEIN
[1]
2003(2)
SA 234
(SCA);
Road
Accident Fund v Kerridge
2019(2)
SA 233
(SCA).
[2]
Southern
Insurance Association v Bailey NO
1984
(1) SA 98
AD
page 99E-G.
[3]
2010
(2) SA 539
(SCA).