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2023
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[2023] ZAFSHC 447
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Masimola v Road Accident Fund (3094/2020) [2023] ZAFSHC 447 (16 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 3094/2020
In
the matter between:
SYDNEY
MASIMOLA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
LOUBSER, J
HEARD
ON:
27 OCTOBER 2023
JUDGMENT
BY:
LOUBSER,
J
DELIVERED
ON:
16 NOVEMBER
2023
[1]
On 20 September 2018 the plaintiff was walking at or near Hanger
Street in the city of Bloemfontein
when he was hit by a motor
vehicle. He sustained serious injuries to his left leg in the
accident. Pursuant to these events, the
plaintiff issued summons
against the defendant for future medical expenses, past and future
loss of income and for general damages
to a total of more that R7
million. His claim for past and future loss of income amounted to
more than R5 million.
[2]
The defendant denied liability for the
plaintiff’s claims, and the matter came before this court
for
adjudication. During the course of the litigation, the parties
reached agreement in respect of the claims for future medical
expenses and for general damages. They also reached agreement that
the defendant is liable to pay 70% of the plaintiff’s
proven or
agreed damages. These agreements were given effect in an order of
this court dated 4 October 2023.
[3]
All that now remains to be decided is the amount for which the
defendant is liable in respect
of the plaintiff’s past and
future loss of earnings. The bone of contention as far as this item
is concerned, exists in the
application of contingencies only. This
court is therefore called upon to only determine the contingencies to
be applied in the
calculation of the plaintiff’s past and
future loss of earnings.
[4]
Neither of the parties presented any
viva voce
evidence in the
court. By written agreement between the parties, the expert reports
of an orthopaedic surgeon, an occupational
therapist, an industrial
psychologist and an actuary were merely handed in. The last paragraph
of the written agreement reads as
follows: “
It
is recorded that the affidavits deposed to by the aforesaid expert
witnesses and the collateral evidence which forms the basis
of the
findings contained in the aforesaid expert reports is accepted into
evidence by agreement between the parties in terms of
rule 38(2) read
with
section 3(1)
of the
Law of Evidence Amendment Act 45 of 1988
.
”
[5]
It appears from the expert reports mentioned that, at the time of the
accident, the plaintiff
was a self employed carpenter. According to
the experts, he is unable to continue with this work due to his
injuries. At most,
he can only be accommodated in a light work and
sedentary environment. However, the chances of him finding such work
is not good
because,
inter alia
, he is already 49 years old
and he is only in possession of a grade 9 qualification.
[6]
In the report of the industrial psychologist, it is stated that at
the time of the accident, the
plaintiff made a profit of R23 000.00
per fortnight, but that no proof of this amount could be provided. In
his calculations
the actuary used an amount of R25 000.00 per
month as the plaintiff’s income for the period after the
accident, but
there was also no proof provided for this amount.
Assuming for the moment that the pre-accident amount per fortnight
and the post
accident amount per month reflects the true position, it
means that the plaintiff made a profit of R46 000.00 per month
before
the accident occurred. It further appears from the expert
reports that the plaintiff tried to continue his carpentry work after
the accident, but that he was unable to do much himself. He had to
make use of the assistance of others, and in the process he
did not
make much profit. These attempts to continue with his carpentry work
are referred to in one of the expert reports as “piece
jobs”.
It needs mentioning that, according to the reports, the plaintiff
received a disability grant as from March 2019,
although there is
also no proof of this income as well. Be it as it may, it appears
that the plaintiff is functionally unemployable
as far as the future
is concerned.
[7]
Now when it comes to the calculation of loss of earning capacity for
the future, it speaks for
itself that it can never be a matter of
exact mathematical calculation. Such an enquiry is speculative at
most. Notwithstanding,
an actuarial computation is always a useful
basis for determining the future loss of earnings. However, the court
still has a wide
discretion to award what it believes to be just.
[1]
In exercising this
discretion, contingencies play an important role, because it refer in
general to the normal consequences and
circumstances of life, which
beset every human being and which directly affect the amount that a
plaintiff would have earned. The
deduction of contingencies remains
the prerogative of the court, but in normal circumstances,
contingencies are generally applied
as deductions of 5% for past loss
of earnings and 15% for future loss of earnings.
[2]
[8]
In the present matter, the court has the
benefit of an actuarial calculation presented by the plaintiff.
The
actuary calculated the past loss of earnings to be R370 791.00
and the future loss of earnings to be R2 465 491.00.
This
amounts to a total loss of earnings in the sum of R2 836 282.00.
In calculating these figures, the actuary used
the alleged R46 000.00
profit per month before the accident and an income of R25 000.00
per month after the accident,
and applied no contingencies. It was
submitted in this court by the plaintiff’s counsel that the
normal contingencies of
5% for the past loss and 15% for the future
loss should be applied by the court.
[9]
On the other hand, the attorney for the
defendant relied on the fact that the alleged monthly profit
of the
plaintiff before the accident was not substantiated by any proof or
documentary evidence. For this reason, the contingency
percentage
should be much higher than the normal, she submitted. A contingency
deduction of 50% was suggested by her.
[10]
As far as this submission is concerned, it is clear that a
contingency deduction of up to 50% may be applied
where there is no
proof of income.
[3]
Since the
plaintiff provided no proof of his income after the accident and
before the accident, I am of the view that there is no
basis for
differentiating between past and future loss of income in the
pre-morbid scenario (had the accident not occurred), and
that it
would be proper and correct to provide for the same contingency in
respect of both.
[11]
Having regard to all the expert reports, the base
values used by the actuary and to the lack of proof for
the income, I
am of the view that a 25% contingency deduction should be applied to
the plaintiff’s pre-morbid (had the accident
not occurred) loss
of earnings calculation in respect of both the past and the future.
At the same time, the post-morbid (having
regard to the accident)
contingency deductions should be retained at 5% for the past loss of
earnings and 15% for the future loss
of earnings. So calculated, the
plaintiff’s total loss of earnings amount to a sum of
R1 642 204.65.
[12]
In terms of the agreement between the parties and the subsequent
order of court, the defendant is liable
to pay 70% of that amount to
the plaintiff. As for costs, I can find no reason why the general
rule that costs follow the result,
should not apply.
[13]
The following order is made:
1. The
defendant is ordered to pay to the plaintiff the sum of R1 149 543.00
for past and future loss of earnings.
2. The
defendant is ordered to pay the plaintiff’s taxed or agreed
party and party costs on a High Court scale
from 5 October 2023 to
date of this order.
3. In the
event that costs are not agreed:
3.1 The
plaintiff shall serve a notice of taxation on the defendant’s
attorney of record;
3.2 The
plaintiff shall allow the defendant fourteen (14) days to make
payment of the taxed costs.
P.
J. LOUBSER, J
For
the Plaintiff:
Adv.
R. van der Merwe
Instructed
by:
Phatshoane
Henney Inc.
Bloemfontein
For
the Defendant:
Mrs.
J Gouws
Instructed
by:
State
Attorneys
Bloemfontein
/roosthuizen
[1]
See for
instance RAF v Guedes
2006 (5) SA 583
(SCA) par 8
[2]
Koch:
The Quantum Year Book 2023
[3]
See AA Mutual
Insurance Association v Maqula 1978(1) SA 805 (A); RAF v Kerridge
[2018] ZASCA 151
; Mbokazi v Minister of Police and Another
[2020]
JOL 47640
(GP)