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
>>
2022
>>
[2022] ZAFSHC 21
|
|
Van Pletzen v Road Accident Fund (5610/2018) [2022] ZAFSHC 21 (10 February 2022)
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: 5610/2018
In the matter between:
GP VAN PLETZEN
;Plaintiff
and
ROAD ACCIDENT
FUND;
Defendant
HEARD
ON:
12
& 13 OCTOBER 2021
WRITTEN HEADS OF ARGUMENT
DELIVERED ON 20, 22 & 25 OCTOBER 2021
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 09H00 on 10 February 2022.
[1]
The plaintiff’s claim against the defendant is for damages
arising from injuries
he sustained when he was struck by a motor
vehicle. He issued summons on 7 November 2018 claiming an amount of
R2 051 570.00
made up as follows:
1.1.
Future hospital and medical expenses:
Section
17 (4) (a) undertaking
1.2.
Past and future loss of income:
R1 401 570.00
1.3.
General damages:
R650 000.00
[2]
The defendant defended the claim but later conceded the merits 90% of
the plaintiff’s
proven damages. The defendant undertook to
furnish the plaintiff with an Undertaking in terms of section 17(4)
(a) of the Road
Accident Fund Act (“The Act”)
[1]
limited to 90% in respect of the plaintiff’s future hospital
and medical expenses. The general damages were settled in amount
of
R360 000.00.
[3]
The only issue that I have to determine is the quantum for damages
relating to past
and future loss of earnings.
[4]
It is common cause that on 15 April 2017 the plaintiff sustained a
fracture of his
right mid-shaft femur after he was struck by a
vehicle with registration numbers and letters
CF 123 745
there and then driven by Ms Charlene Geduld. At the time of the
accident the plaintiff was a pedestrian. As a result of the said
injuries he was transported to Pelonomi hospital by ambulance. On the
next day he was transferred to Universitas hospital where
he
underwent surgery and discharged after ten days. He returned to the
hospital several times post discharge for another surgery
and
treatment for septicaemia. The infection is still uncontained.
[5]
In the quest to prove his case the plaintiff testified and also
adduced the evidence
of Doctor Louis Francois Oelofse an orthopaedic
surgeon and Dr Evert Jacobs an Industrial Psychologist. What follows
hereunder
is the summary of the plaintiff’s evidence.
[6]
It was the plaintiff’s case that at the time of the accident he
was earning
an income operating a chauffeur business with two
vehicles that he owned. He started the business in 2011. He drove one
of the
vehicles whilst his erstwhile employee Quinton drove the other
vehicle. They ferried passengers from and to various destinations.
The plaintiff generated an income of R21 000.00 which includes
an amount of R8 000.00 which he received from Quinton
as his
half share of the proceeds of the R16 000.00 generated by
Quinton. The amounts varied depending on the trips made.
[7]
It was the plaintiff’s testimony that after the accident
Quinton continued to
drive alone with the result that the plaintiff’s
income was reduced to only the R8 000.00 he received from
Quinton.
Three years later Quinton his employ. The plaintiff then
employed another driver, Mack who worked for him for the next three
years.
The income generated by Mack was about R16 000.00 per
month. The plaintiff has since returned to driving about two years
ago
against his Doctor’s advice. He is finding it difficult
with the pain that he is experiencing but he has no choice as he
needs to earn a living. He is presently earning about R10 000.00
a month.
[8]
He explained that log and/or trip sheets were kept relating to the
trips made and
the income received was deposited into a bank account
some of it was used for fuel and car repairs.
[9]
The plaintiff further testified that he does not have a bank account
where the business
money was deposited into as he only opened a bank
account after he started receiving his old age pension six years ago.
His total
income from the two vehicles was actually R30 000.00
from which he deducted the expenses relating to car service, fuel and
other vehicle related costs to arrive at R21 000.00.
[10]
Dr Oelofse confirmed that the plaintiff is no longer in the position
to drive his taxi as before the
accident. He should not be allowed to
go back to driving but to stay at home and receive treatment for the
infection of the wounds
which will involve additional surgeries. If
he has to work it should be sedentary and light work duty.
[11]
Dr Jacobs who had been sitting in court during the plaintiff’s
testimony began his testimony
by requesting leave to amend his report
on the basis that the plaintiff had deviated from the information
that he provided to him
upon which he based his opinion. He referred
the court to an inscription on page 12
[2]
of his report with states thus:
“…
THE
FIGURES ARE A GUIDELINE AND AN ACTUARY SHOULD RECALCULATE IT ON THEIR
FINANCIAL PRINCIPLES.
SHOULD NEW INFORMATION
OR EVIDENCE BE BROUGHT FORWARD THE RIGHT IS RESERVED TO CHANGE
OPINIONS.”
[12]
He testified that the plaintiff operated an informal business and
there is usually no proof of income.
His report is based on the
information that was reported to him by the plaintiff. According to
that information the plaintiff’s
income was R60 000.00 per
month and in court the plaintiff presented different figures
therefore changes need to be made on
his report to align with the
plaintiff’s testimony and having regard to the plaintiff’s
testimony he estimates his
earning capacity to about R16 000.00
per month because even if there was no proof of income presented the
plaintiff still
has the capacity to earn R16 000.00 the court
may apply its discretion with regard to the contingencies to be
applied.
[13]
Thus was in short the evidence presented on behalf of the plaintiff.
No evidence was led from the defendant’s
side.
[14]
The onus is on the plaintiff to prove on a balance of probabilities
that at the time of the accident
he was earning an income but due to
the injuries he sustained in the accident his earnings have been
diminished including his earning
capacity.
[15]
The plaintiff has proffered an incoherent, implausible and
inconsistent version with regard to his
purported business venture
and the loss he allegedly sustained as a result of not being able to
earn an income. It is not clear
when exactly was the business
established, how many vehicles were involved, who owned the vehicles
and how much was generated from
the business and in which period.
[16]
In his direct evidence he testified that he established the business
in 2011 with his two vehicles
one driven by him whilst the other was
driven by his employee Quinton. He generated a total monthly income
of R21 000.00 including
the R8 000.00 he received from
Quinton.
[17]
When his version was tested under cross-examination he changed his
version and stated that he actually
started the business in 2008. He
had four vehicles, one was later damaged in a collision he then
remained with three vehicles.
The monthly income received varied from
R21 000.00 to R24 000.00. The explanation was that the
amount of R21 000.00
was arrived at after deducting fuel and
other related costs. He could not provide the details of the costs
and the exact amounts
spent in this regard.
[18]
Still on the proof of income and expenses. Despite having told the
court that he kept log or trip sheets
to record the trips and also
deposited the earnings into a bank account. Under cross-examination
he somersaulted on his evidence
and stated that he only had a bank
account when he started receiving his old age pension therefore there
is no record of the deposits.
He said he is not able to produce the
trip or log sheets because he had moved from his previous home.
[19]
The plaintiff told the court that after the accident (year 2017)
Quinton continued to drive alone which
resulted in the reduction of
his income due to the fact that he received an income from only one
car. Then he bizarrely asserted
that after Quinton left three years
later (year 2020) he employed another driver Mack who worked for him
for three years before
he took over using his sister’s vehicle.
It is highly improbable that Mack would have worked for him for three
years or even
two and half years as that would mean he left his
service in the year 2023.
[20]
It does not end there. The plaintiff’s evidence also
contradicts his expert evidence. Dr Jacob’s
opinion
[3]
with regard to the amount claimed by the plaintiff is premised on the
grounds that the plaintiff had a taxi business which he operated
with
four vehicles. One of those vehicles was damaged in a collision
leaving three of which he drove one and his two employees
drove the
other two. The total amount generated as an income per month was
between R30 000.00 and R40 000.00. After Quinton
left he
hired someone else and made a total amount of R18 000.00 which
was shared equally between himself and the driver.
[21]
In an attempt to rescue the plaintiff’s case, when he took the
stand Dr Jacobs inexplicably sought
to amend his opinion to align
with the evidence the plaintiff has presented in court contending
that he was entitled to do so.
[22]
I find Dr Jacobs’ contention quiet disingenuous. The annotation
he refers on page 12 of his report
provides for a situation where at
the time the report was drafted the relevant information was
unavailable then he would be entitled
to amend his opinion when the
information becomes available. It has nothing to do with a situation
where the significant facts
are varied in
toto
as this would
clearly result in a total different manner of quantification of the
claim as it has been conceded by Dr Jacobs.
[23]
Expert evidence presented to the court should be and also be seen to
be the independent and unbiased
product of the expert and not the
result of a modified form to suit the plaintiff’s case. On his
(Dr Jacob’s) own version
his opinion is based on the
information provided by the plaintiff which turns out to be
untenable. An expert opinion based on misinformation
is valueless to
the court.
[24]
The fact that the defendant has not objected to Dr Jacob’s
evidence does not require the court
to accept it. Expert witnesses
are there for the benefit of the court and not any party therefore
the court is at liberty to either
accept or reject the evidence.
R v Theunissen
1948 (4)
SA 43
(C) at 46.
[25]
The discrepancies that exist in the plaintiff’s entire evidence
cast doubt on the plaintiff’s
contention that in addition to
the pension he was earning at the time of the accident he had another
stream of income generated
through a chauffeur business and that as a
result of the injuries he has been unable to work with the result
that he has suffered
damages relating to past and future loss of
earnings.
[26]
It is the light of these circumstances I’m not persuaded that
the plaintiff has proven on a preponderance
of probabilities that he
is entitled to damages claimed.
[27] In the
result I make the following order:
1.
The
plaintiff’s claim for
damages relating to past and future loss of earnings is dismissed
with costs.
2.
The
defendant is ordered to pay to the plaintiff the amount of
R360 000,00 (THREE HUNDRED AND SIXTY THOUSAND RAND) as general
damages. Payment to be made into the plaintiff’s attorneys’
trust account:
HONEY
ATTORNEYS-TRUST ACCOUNT
NEDBANK-MAITLAND
STREET BRANCH, BLOEMFONTEIN
BRANCH
CODE: 11023400
ACCOUNT
No: 1[...]
REFERENCE:
HL BUCHNER/YV/J03793
3.
The
defendant is to furnish the plaintiff with an undertaking in terms
of
Section
17(4)(a)
of
the
Act
,
90% of the costs of the future accommodation of the plaintiff in a
hospital or nursing home or the treatment of or the rendering
of a
service or the supplying of goods to him arising out of the injuries
sustained by him in the motor vehicle collision of 15
April 2017 in
terms of which undertaking the defendant will be obliged to
compensate him in respect of the said costs after the
costs have been
incurred and on proof thereof.
4.
The
defendant is ordered to pay the plaintiff’s cost of suit,
including any qualifying expenses of such experts in respect
of whom
the plaintiff has furnished expert reports, including the travelling
and accommodation costs, if any, which the plaintiff
incurred in
order to consult with the experts with the exception of the costs
relating to the expert’s attendance of the
proceedings relating
to the claim for past and future loss of earnings (see para 1 above).
NS
DANISO, J
APPEARANCES:
Counsel
on behalf of the plaintiff:
Adv.
HE De La Rey
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
Counsel
on behalf of the defendant:
Ms.
C Bornman
Instructed
by:
State
Attorney
BLOEMFONTEIN
[1]
Act
No, 56 of 1996.
[2]
Paginated
page 87 of the court bundle.
[3]
Page
78 of the paginated bundle.