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2024
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[2024] ZAFSHC 111
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Mokete v Road Accident Fund (1244/2023) [2024] ZAFSHC 111 (18 April 2024)
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: 1244/2023
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
In
the matter between:
KAMOGELO
MOKETE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
BEFORE:
CHESIWE J
HEARD
ON:
21 NOVEMBER 2023
DELIVERED
ON:
18
APRIL 2024
[1]
The
Plaintiff has instituted a claim against the Defendant for damages he
suffered from a motor vehicle collision on 14 July 2018.
The
Plaintiff was a passenger in the motor vehicle with registration
number H[…].
[2]
The
merits have been settled between the parties, with the Defendant
conceding to being 100% liable for the Plaintiff’s proven
damages.
[3]
The
only issue left for determination is the loss of earnings and the
appropriate amount to be awarded.
[4]
Before
commencement of trial on 01 November 2023, the parties agreed that
the Plaintiff’s expect reports be accepted by this
Court,
except for the expert reports of the Occupational Therapist and
Industrial Psychologist, who were called to testify on the
day of the
trial. The actuarial report of the Plaintiff was also accepted on the
basis that contingencies will be argued.
[5] Plaintiff
sustained the following injuries: fractured right femur; head injury-
bruises on the forehead;
cutting on the upper lip. Moreover,
plaintiff was hospitalized for a month and on discharge, he mobilised
on crutches.
[6] Plaintiff
pleaded that the collision occurred solely as a result of the
negligence of the insured driver
in one or more of the following
respects:
“
6.1 Drove
at an excessive speed;
6.2 Failed
and omitted to observe statutory traffic rules;
6.3 Failed
to apply brakes in time.”
Plaintiff’s
oral evidence
[7] At
the time of the accident, testified that he was 20 years, a learner
at Brebner High School, doing
grade 12. Plaintiff played for Brebner
Soccer Club in Bloemfontein and received no salary and relied on
sponsorships.
[8] That
at the time of the accident, he sustained a fractured femur, an
injury to his head and his upper
lip. He was admitted at Pelonomi
Hospital for a month and was operated on with insertion of steel and
screws were inserted. Plaintiff
is currently unable to run at
capacity or walk for long distances as he experiences pain if he
participated in sports. As a consequence
of that, he no longer plays
soccer.
[9] Plaintiff
said he was previously employed at Clicks where he was earning
R4 500, 00 (four thousand
five hundred rand) per month. His
duties involved doing cashier work and receiving and displaying
stock. He only worked for 7 (seven)
months at Clicks.
Plaintiff
said he left Clicks as the operations were still fresh and it was
painful to be on his feet and carrying boxes.
[10] Plaintiff
then got a job at OK Furniture as a General Assistant from April
2022. He earned R4 956, 52
(four thousand nine hundred and fifty-six
rand fifty-two cents). His duties entail cleaning the store,
receiving and packing stock,
collecting stock from the truck and
lifting heavy boxes. He said the manager is sympathetic and allows
him to take 15 (fifteen)
minutes breaks when experiencing pain.
Plaintiff is currently still employed at OK Furniture.
[11] Further,
Plaintiff testified that since the accident, he can no longer play
soccer as he is unable to
run at full capacity. Plaintiff indicated
that he had good prospects of playing professional soccer as three
(3) of his soccer
mates are now playing professional soccer.
Plaintiff indicated that he thought he will be able to play
professionally in Turkey.
[12] Moreover,
under cross-examination, Plaintiff explained that he was hospitalized
for three (3) weeks,
from 14 to 31 July 2018 and to date continues to
experience pains in his lower back and right leg. He further
experiences cramps
in both legs, usually this happens at night when
he is sleeping.
[13] In
light of the accident and dreams of playing professionally not being
possible anymore, Plaintiff
testified that he has since taken music
part time.
[14] Plaintiff’s
next witness was Susan Van Jaarsveld, an Industrial Psychologist. She
testified that
Plaintiff will only be able to do sedentary work as he
cannot do work of a physical nature. She said Plaintiff as a soccer
player
would have earned between R5 000, 00 (five thousand rand)
and R8 000, 00 (eight thousand rand) and that Plaintiff would
have played soccer until the age of 25 and a good chance to become a
soccer player.
[15] Ms
Liza Marie De Klerk, an Occupational Therapist, testified on behalf
of the Plaintiff and stated that
on 6 June 2023, she consulted with
the Plaintiff. Plaintiff informed her that he experiences pain in his
right leg when he lifts
heavy stuff, experiences pain and needles and
has limited sensation in his right knee. Ms de Klerk emphasised that
Plaintiff should
not perform heavy duty work however, can perform
light sedentary work. Further that Plaintiff’s prospects of
employment will
influence his employability.
[16] That
was the Plaintiff’s evidence. Defendant closed its case without
calling any witness. Both
Counsel submitted written heads of
argument.
[17] Plaintiff’s
contention is that his evidence has proven on the balance of
probabilities that he
has established a claim for loss of earnings
and that the actuarial as apportioned should be relied upon by the
Court. The Defendant
contends that the Plaintiff did not discharge
the onus of proving on a balance of probabilities he is vulnerable in
the labour
market.
Plaintiff’s
Expert Reports
[18] Ms
van Jaarsveld in her report at paragraph 6.2, scenario 1
[1]
with regards to loss of earnings, states as follows:
“
Mr
Mokete would have continued to play soccer at Brebner Soccer Club for
a period of two years without receiving a salary, but depending
on
sponsorship for soccer gear. Taking into account Mr Mokete’s
schooling and his soccer career until the accident, the writer
is of
the opinion that Mr Mokete could have followed a career as a
Professional Soccer Player at a small South African Club and
could
have earned a basic salary that varied between R5 000 and R8 000
per month.”
[19] Dr
Ziervogel, an Orthopaedic Surgeon in his report
[2]
stated as follows:
“
It
is known that metal close to all joint cause all sorts of complaints.
The complaints should clear up once the metal is removed.
The
ossification will re-appear if an attempt is made to remove it.
Normally it becomes asymptomatic in time.”
[20] Dr
Ziervogel goes further and concludes that: “The patient’s
normal life expectancy is from
an orthopaedic point of view, not
adversely affected by the injuries.”
[3]
[21] Lisa-Marie
de Klerk who is employed at Delport Occupational Therapists
[4]
states as follows:
“
During
the assessment, the client presented with challenges regarding
functioning, especially with regard to his physical level
of function
…
The
client is able to perform his job tasks at present, however, his job
poses some challenges in terms of the repetitive heavy
lifting and
carrying tasks which exacerbate and increase pain levels.”
[22] Plaintiff’s
appointed Actuary, Johan Saucer post-morbid,
[5]
stated that:
“
Thereafter,
he earned a salary, as a general assistant at OK Furniture, of
R4 957,00 per month in current monetary terms. …
Thus an
annual income of R63 939 (4 957 * 12 * 1.075) in current
monetary terms or R60 253 in 2022/04/01 monetary terms.
We
project this income with inflationary increases until early
retirement at age of 48.5 ((47 + 50) / 2).”
[23] Defendant
did not file any expert reports nor were there any joint minutes.
[24] Counsel
on behalf of the Defendant attached to the written heads of argument
a summary of the calculations
which amounts a total loss of earnings
at R556 067, 25 (five hundred fifty-six thousand sixty-seven
rand twenty-five cents).
There is no actuarial report from the
Defendant’s side. The court can therefore only rely on
the actuarial report of
the Plaintiff.
Loss
of income
[25] In
South
Insurance Association Ltd v Bailey N.O
[6]
,
Nicholas AJA said the following:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or
oracles.”
[26] In
Pitt
v Economic Insurance Co. Ltd
[7]
,
it was stated:
“…
the
Court must take care to see that its award is fair to both sides - it
must give just compensation to the plaintiff, but must
not pour our
largesse from the horn of plenty at the defendant's expense.
[27] For
purposes of easy mathematical calculations on the different expert
reports as well as information
received from the Plaintiff, if
actuarial calculations are impossible, the Court never the less
determines the Plaintiff’s
loss of earning capacity
arithmetically on the basis of estimation, but not proved earnings.
[28] In
this instance, Plaintiff was employed as a Shop Assistant/Cashier at
Clicks, earning a salary of
R6 433, 71 (six thousand four
hundred thirty-three rand seventy-one cents) per month. However,
Plaintiff left at Clicks as
he could not cope with the physical
demands of the work. Plaintiff was then employed at OK Furnitures as
a General Assistant to
date earning a salary of R4 956, 62 (four
thousand nine hundred fifty-six rand sixty-two cents) per month. He
testified that
the work demand at OK Furniture is much heavier than
at Clicks, however is allowed to take breaks in between to recover
from the
pain in his leg and hip. Plaintiff explained that his
employment at OK Furniture is due to his dire financial circumstance.
[29] Even
though the experts in their opinion that the Plaintiff has
experienced physical challenges in his
current employment and that he
is gradually developing osteoarthritis,
[8]
Plaintiff still has to go for further surgery to remove the
steel plates, which will reduce the pain experienced. Despite
the Plaintiff’s injuries he continued to work even lifting
heavy boxes. This indicates that the Plaintiff’s injuries
do not deter him from finding employment. Even if it is
employment in a lower skilled level in the labour market.
[30] Mrs
Delport,
[9]
Dr Zievogel
stated that:
“
The
patient works as a general assistant. He will find it hard to this
after a total knee replacement.”
[31] Further
that Plaintiff is “able to perform his job tasks at present,
however his job poses some
challenges in terms of the repetitive
heavy lifting and carrying tasks which exacerbates and increases pain
level.”
[10]
[32] The
Court takes cognisance of the fact that Plaintiff is put in the
position which otherwise wouldn’t
have been, had it not been
for the accident. Indeed, the removal of the steel plate would ease
the pain in the leg. Thus, the Plaintiff
will be able to find
alternative employment. Though still employed at OK Furniture,
Plaintiff testified that he has not applied
for alternative
employment. Furthermore, Plaintiff’s evidence was that his
future plans to professionally play soccer will
not happen due to the
injuries suffered. However, Plaintiff intends to "pursue a
professional career in composing and performing
music and would like
to have his own record label someday.”
[11]
This
kind of job is sedentary by nature and Plaintiff will be able to
easily adjust to his future career plans.
[33] Plaintiff
came forth as a truthful and honest witness. He told this Court the
reasons for leaving the
employment at Clicks. And even though he
suffers pain, he continues to do heavy duty work at OK Furniture.
Plaintiff in my view
is not idling, feeling sorry for himself and
making unemployment in the country an issue. He continues to be
employed in spite
of the pain experienced. Moreover, Plaintiff is
prepared to remove the steel plate which will indeed relieve the
pain.
[34] Notwithstanding
the seriousness of his injuries from a physical point of view and the
fact that he has
steel plates in his right leg, he continues to work.
From the expert reports, it is not stated unequivocally that
Plaintiff would
not be capable to do any work in the future. As
already sated above, Plaintiff wishes to compose and perform music
professionally.
[35] There
is no doubt the country’s unemployment rate is an issue and
Plaintiff will have to compete
with his peers in the same labour
market. Indeed, Plaintiff finds himself in a difficult position with
no tertiary qualifications
but only with a Grade 12
Certificate.
[36] Taking
into consideration the various expert reports, in my view there is a
possibility that Plaintiff
may post morbid and after removing the
steel plate be able to find or do some sedentary work even though
currently, is doing heavy
work at testified.
[37] When
working in a sedentary capacity, Plaintiff will require the
following: reasonable accommodation:
allowance to change posture as
needed when experiencing discomfort, carry and lift reasonably
weighted objects with both hands,
a workplace that must be
ergonomically designed and structured especially during sedentary
work/workstation, ergonomical tools
and equipment which implies
additional financial expenses and limitation in standing, walking and
carrying.
[12]
[38] The
Actuary structures two scenarios for the Plaintiff, that is if he
retires at age 47 years to 50
years or at age 65 years.
[13]
Having considered actuarial calculations of both scenarios, I am
inclined to apply Scenario 2 of post-morbid retirement between
ages
47 to 50.
[14]
The
applicable contingencies as used by the Actuary, are indeed fair and
just on the second scenario.
[39] The
past loss of earnings minus contingency deduction of 5%/5% and future
loss of earnings minus contingency
deductions of 15%/35%
[15]
is calculated as follows:
Pre-morbid
Post-morbid
Loss
(Difference)
252 030
-12
602
142 056
-7
103
239
428
3
707 118
-556
068
134
953
1
082 174
-378
761
104
475
3
151 050
703
413
2
447 637
Past
earnings
Minus
contingency deduction (5%/5%)
Past
loss of earnings
Future
earnings
Minus
contingency deductions (15%/35%)
Future
loss of earnings
2
552 112
Total
loss of earnings
2
552 112
Total
loss of earnings after RAF cap
[40] It
was said in
Masemola
v Road Accident Fund
[16]
that: “It is now settled that contingencies, whether
negative or positive, are as important control mechanisms to adjust
the loss suffered to the circumstances of the individual case in
order to achieve equity and fairness to both parties. There is
no
hard and fast rule regarding contingency allowances.
[41] Taking
into consideration that there being a possibility that the
Plaintiff’s pains will be eased
by the removal of the steel
plate and that he may find employment in a sedentary capacity or even
as he wishes, to be a music composer
and performer, the actuarial
Scenario 2 would be more appropriate.
[42] I
accordingly order as follows:
1. The
Defendant is to pay the Plaintiff in respect of future loss of
earnings, an amount of R2 552 112,
00 (two million five hundred
and fifty-two thousand one hundred and twelve rand) within 180 days
from the date of this Court order;
2. The
Defendant is to pay interests on the above amount if not paid within
180 days.
3. The
Defendant to pay the costs of suit.
CHESIWE,
J
On
behalf of Plaintiff:
Adv. K P Mohono
Instructed
by:
Mavuya Attorneys Inc.
BLOEMFONTEIN
On
behalf of the Defendant: Ms C Bornman
Instructed
by:
State Attorney c/o Road Accident Fund
BLOEMFONTEIN
[1]
at paragraph 6.2, scenario 1
[2]
Notice in terms of Rule 36(9)(a) & (b), page 52
[3]
Notice in terms of Rule 36(9)(a) & (b), page 57
[4]
Notice in terms of Rule 36(9)(a) & (b), page 78
[5]
Notice in terms of Rule 36(9)(a) & (b), page 35
[6]
1984 (1) SA 98
(A) at 99 A
[7]
1957 (3) SA 284 (N)
[8]
Index: Plaintiff’s Expert Notices and Reports, page 53
[9]
Index: Plaintiff’s Expert Notices and Reports, page 15
[10]
Index: Plaintiff’s Expert Notices and Reports, page 15-16
[11]
Index: Plaintiff’s Expert Notices and Reports, page 78
[12]
Index: Plaintiff’s Expert Notices and Reports, pages 18-19
[13]
Index: Plaintiff’s Expert Notices and Reports, J Sauer
(Actuary), pages 29-38
[14]
Index: Plaintiff’s Expert Notices and Reports, J Sauer
(Actuary), page 34
[15]
Index: Plaintiff’s Expert Notices and Reports, J Sauer
(Actuary), page 35
[16]
[2023] ZAGPPHC 553; 17336/2017 (2 July 2023)