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[2023] ZAGPPHC 1222
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Matlala v Road Accident Fund (67669/2017) [2023] ZAGPPHC 1222 (22 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number: 67669/2017
Date
of hearing: 11 August 2023
Date
delivered:
22
September
2023
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED
DATE:
22/9/23
In
the matter between:
THABISO
GEORGE MATLALA
Plaintiff
And
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
SWANEPOEL
J:
[1]
Plaintiff sues the defendant ("the
RAF") for damages sustained as a result of an accident that
happened on 10 March 2017.
The merits were previously settled 100% in
plaintiff's favour, as were general damages. The sole issue for
determination is the
quantum of plaintiff's loss of past and future
income.
[2]
Plaintiff is a 33 year-old male who worked
as a machine operator before the
accident.
He
has
a
Grade
12 qualification,
a
certificate
in Health and Safety, and a Higher
Certificate in Occupational Health and Safety. Plaintiff suffered
injuries to his right femur,
leg and foot. He suffers from ongoing
pain,
which
is
worsened
by
prolonged
sitting,
walking,
standing or cold weather. He has a right distal leg angulation.
Plaintiff also suffers from depression and post-traumatic
stress
disorder.
[3]
Plaintiff returned to work 5 months after
the accident. Plaintiff's pre-accident employment can be classified
as light work. However,
after his return-to-work plaintiff was unable
to conduct his pre-accident duties as normal, and he was reassigned
as a general
worker. For a period of time, until end May 2019,
plaintiff was employed as a SHE Officer. It was reported to
plaintiff's industrial
psychologist that plaintiff's incapacity made
it difficult to find a position that suited him.
Plaintiff's orthopaedic surgeon was of the
view that plaintiff's competitiveness in the labour market had been
compromised, and
he estimated his loss of working capacity at 5 to
10%. Plaintiff's psychiatrist believed that plaintiff qualified on
the narrative
test for general damages, due to severe long-term
behavioural
disturbances.
Plaintiff's
occupational
therapist
was
of
the
view that plaintiff was employable, although his prospects had been
compromised by the injuries sustained. Plaintiff's industrial
psychologist (in a report dated 22 May 2019) was of the view that
pre-morbid plaintiff would have grown his career to become a
Health
and Safety Representative. Post-accident, he opined that plaintiff
would be reliant on an accommodative
employer. He would find it difficult to
find employment if he became unemployed,
but he nevertheless remained employable.
[4]
Respondent was subsequently retrenched for
reasons unrelated to his injuries. In a supplementary report dated 18
October 2022, after
plaintiff became unemployed, the industrial
psychologist concluded that plaintiff would in all likelihood not
obtain employment,
and would be unemployed for the remainder of his
life. It is to be noted that the industrial psychologist did not
interview plaintiff
again, he did not enquire
as to the steps plaintiff had taken to
obtain alternative employment, and he had no idea why plaintiff had
become retrenched.
[5]
Defendant's industrial psychologist
testified that plaintiff retained the ability to be employable in the
open market, albeit with
limitations. He is able to compete with his
peers for sedentary work, specifically in his work at the time of the
accident.
[6]
I find it disturbing that plaintiff's
industrial psychologist came to the conclusion that plaintiff would
in all likelihood not
obtain employment, without even having
discussed with plaintiff his circumstances at the
time when
the
second
report
was
produced.
The
industrial
psychologist literally came to
his new findings without having any basis
in fact to
do
so.
[7]
I will therefore accept the opinion of the
defendant's industrial psychologist.
I
accept that plaintiff is compromised, that he will be reliant on a
sympathetic employer, and that he will in all likelihood retire
before the age of 65. I cannot find that he is unemployable.
[8]
As far as contingencies are concerned, I am
of the view that a 15% deduction pre-morbidly is appropriate. As in
the case of
Krone v Road Accident Fund
[2015] ZAGPPHC 697,
I am also of the
view that a 50% post-morbid contingency deduction must be applied. I
shall apply that deduction to the actuarial
report of the plaintiff
dated 30 May 2019 (which was premised on the plaintiff remaining
employed):
Past loss of earnings:
R 93
335.00
Future earnings
(uninjured):
R 11
389 200.00
After 50% deduction:
R 5
694 600.00
Future Injured
earnings:
R 2
750 600
After 25% deduction:
R 2
062 950.00
Total future loss:
R 3
631 650.00
Total future and past
loss:
R 3
724 985.00.
[9]
Plaintiff has not addressed me on a
contingency fee agreement, nor is one uploaded to Caselines, and I
therefore accept that there
is no such agreement.
[10]
Consequently, I make the following order:
[10.1]
Defendant shall make payment to plaintiff in the sum of R 3 724
985.00 for loss of earning capacity.
[10.2]
Defendant shall provide plaintiff with an undertaking in terms of
section 17
(4) of the
Road Accident Fund Act, 56 of 1996
for payment
of all future hospital medical and related expenses resulting from
plaintiff's injuries.
[10.3]
Defendant shall pay plaintiff's taxed or agreed party/party costs,
including the qualifying and reservation
costs of the following
experts:
[10.3.1]
Neil
Barnard;
[10.3.2]
Munro Actuaries;
[10.3.3]
Dr. Sibanyoni
[10.3.4]
B Molwana
[10.3.5]
Dr. Texeira
[10.3.6]
Dr. Matjane
[10.4] Defendant
shall pay the costs within 14 (fourteen) days of taxation or
agreement.
[10.5]
There is no valid contingency fee agreement.
SWANEPOEL
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION PRETORIA
COUNSEL
FOR PLAINTIFF:
Adv.
Makhubo
ATTORNEY
FOR PLAINTIFF:
Leballo
Attorneys
COUNSEL
FOR DEFENDANT:
Adv.
Shivambo
ATTORNEYS
FOR DEFENDANT:
The
State Attorney
DATE
HEARD:
11
August 2023
DATE
OF
JUDGMENT:
22
September
2023