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 210
|
|
Afrika v Road Accident Fund (6052/2017) [2022] ZAFSHC 210 (24 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 6052/2017
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
L.C.
AFRIKA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM:
AFRICA,
AJ
HEARD
ON
:
3
AUGUST 2022
DELIVERED
ON:
This
judgment was handed down electronically by circulation to
the
parties' legal representatives by email. The date and time for
hand-down is deemed to have been at 11h00 on the 24
th
of August 2022.
JUDGMENT
[1]
The plaintiff instituted an action for damages against the defendant
as a result of
certain bodily injuries sustained in a motor vehicle
accident on the 14
th
of May 2014, at Dr. Belcher drive,
Heidedal, Bloemfontein.
[2]
It is pleaded that the collision
occurred when the insured vehicle collided with the plaintiff who was
a pedestrian at the time.
[3]
It is contended that this court is
called upon to adjudicate the issue of quantum only, as the issue of
merits has become disposed
of in 2015. Further that the defendant
admitted to being 100% liable for plaintiff's agreed or proved
damages.
[4]
The remaining issues in dispute are the
plaintiff's claim for loss of income and the
contingency applicable to
the future earnings, post morbidly.
The other
heads of
damages claimed
for was
past medical expenses; but there are
none as plaintiff was treated at provincial facilities. As far as
future medical and hospital
expenses are concerned, this can be
compensated by way of an undertaking in terms of the provisions of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.
[5]
The
general damages have been rejected by the defendant, and consequently
have to be referred to the HPCSA
[1]
,
for adjudication. Thus the only issue therefore is the
future
loss of earning and
contingencies
applicable
to the post morbid scenario.
[6]
The
defendant expressly placed on record that the parties agreed that the
expert reports are what they purported to
be
and that same may therefore be handed up by means of affidavit. No
admissions are
however
made
by
the
defendant
on
the
contents
of
these
affidavits and that the defendant will present arguments on the
reports for purposes of the contingencies to be applied.
[2]
[7]
The
parties relied on the calculation as provided for by plaintiff's
Actuary report
[3]
,
with
past loss of earnings calculated as
R162
365.
As far as Future loss of earnings are concerned, the figure
calculated for
pre-morbid
future earnings, namely
R1
279 440
are
to be accepted
post
morbidly as well.
Parties agreed that 10% contingency deduction would be justifiable in
circumstances of this matter,
bringing
the
pre-morbid
future
loss
of
earnings
to
R1
151 496.
The issue to be decided on is the appropriate contingency deduction
applicable to the post-morbid future loss of earnings.
[8]
It is common cause that plaintiff
sustained a severe fracture of the upper arm, suffering
sequelae
to the
left arm and lower back; a left humerus
fracture was surgically reduced and is it argued that his earning
capacity has been significantly
compromised as a result of the
injuries.
[9]
In relation to plaintiff's personal
circumstances, his highest qualification is grade 10, pre-morbidly he
was a qualified painter,
categorised as falling into the category of
medium to heavy. It is submitted
that
the
plaintiff
was unemployed for a
number
of months but subsequently managed to secure work as driver. He is
being
sympathetically accommodated by
the employer
and the plaintiff is
not at risk of losing his job as a driver, as long as he is capable
of performing his duties.
[10]
It is submitted that the experts opined that the plaintiff is not
suited to work as a driver, therefore the probabilities
are that he
will not be able to continue in this position as his condition
deteriorates with age. He will eventually have to re-apply
for work.
The occupational therapist indicated that he is only suited for
sedentary type of work.
Having regard to his low level of
education, his work experience falling into the category medium to
heavy, he is very unlikely
to compete with competitors that are
better educated and more experienced in the clerical field in order
to obtain employment in
this category of work. Therefore, the
plaintiff stands a real chance of being
functional unemployable.
[11]
Further,
should the plaintiff lose his current
sympathetic
employment, when taking into consideration his low level
qualification, lack of work experience together with his current
medical condition, his job choices have been truncated and he surely
will not have a greater chance of 10-20% to obtain and sustain
ideal
work in future.
[4]
Effectively,
having a 10-20 % chance of obtaining work, the plaintiff has 90-80%
possibility of being unemployed. This is reason
why contingencies are
applied to make provisions for these risks.
[12]
Further,
having regard to the other expert reports, if the recommended
treatment improves the plaintiff's lower back symptoms to
the extent
that he can stand frequently and handle heavier weights, he should be
able to engage in medium work demands and chances
of him securing
employment in future may increase by 10% effectively 20-30%.
[5]
[13]
Therefore the following calculation is
submitted by the
plaintiff
to
be fair
and reasonable in the circumstances:
Pre-morbid
Post-morbid
Difference:
Loss
Past
earnings
R507
038
R336
127
Less
Contingency
deductions
5%/5%
R25
352
R16
806
Total
loss
of
Past
earnings
agreed to:
R481
686
R319
321
R162
365
Future
earnings
R1279440
R1279440
Less
Contingency
deductions
10%/70%
R127
994
R895
608
Total
loss of future
earnings
R1151
496
R383
832
R767
664
Total
loss of
earnings
R930
029
[14]
The
defendant highlighted certain extracts of the expert
reports,
[6]
starting with Drs
Oelofse and Deacon, who recorded that the plaintiff has a previous
left foot fracture unrelated to the accident
and that he was
diagnosed with a united shoulder facture. They further opined that
the plaintiff will do better after treatment.
No
back
injury
or
complaints
related
thereto,
was
mentioned
to
the
orthopaedic
surgeons.
[15]
According to the report of Yandi De
Klerk, the plaintiff is currently employed
as
a
driver at
Hancor
and
he
delivers
milk with
the
help
of
an assistant, who accompanies him. His load handling capacity falls
within the low to medium category. His work demand as a driver
was
based on the description as given by plaintiff. There are some
limitations in standing, kneeling, elevated work and forward
bending,
indicating that he can do this up to 33% of the day. Based on his
mobility, posture and load handling abilities, his physical
capacity
falls within the light category with moderate demands on standing.
Plaintiff is not suited to his current occupation (as
driver) due to
his demands on
weight
handling. Should he
be
able
to
stand
frequently following treatment to the
back, he should be able to do medium category work. However, for as
long as the back-pain
remains symptomatic, the plaintiff is limited
to sedentary and light category work.
[16]
The
defendant argued that the
back
injury
played an important part in the opinion of defendant's Occupational
Therapist. Further that according to the report of the Industrial
Psychologist, Mr Ben Moodie, the plaintiff was assessed on 15 October
2019
[7]
•
It
is reported that the plaintiff has been employed as a driver at
Hancor Dairy from 1 November 2015. The employer was contacted
and he
advised
that there is no set retirement age and that the plaintiff is
not
in danger of losing his job for as long as he can do the said job.
There was
no
mention
made
of
sympathetic employment by
employer.
Mr Moodie opines that should the plaintiff forfeit his current
employment
for
whatever
accident-related
reason,
he
would
not have a greater than 10-20% chance of obtaining ideal work. Should
treatment alleviate his lower back symptoms and his
capacity increase
to medium work demands, his chances of employment improve by at least
10%. Further, that the difference between
the pre and post-accident
postulated earnings should be calculated until age 65. Lastly, Mr
Moodie indicates that his report is
only valid for 2 (two) years and
should the matter not settled within that time, an addendum needs to
be filed.
[17]
The Occupational Therapist made
deference to an Orthopaedic Surgeon with regards to
back pain, but no further addendum
report by an Orthopaedic Surgeon has been filed. The Occupational
Therapist further determines
that based on the carrying of heavy
objects, the plaintiff is not suited for his current job. It is
argued that it must be kept
in mind that the plaintiff is employed as
a driver and is accompanied by an assistant and further that there is
no confirmation
from his employer on what specifically his duties
entail and whether he is indeed, as a driver, expected to carry heavy
objects.
Further, that Mr Moodie has based his opinions and
postulations on the report of the Occupational Therapist, which
considered an
undiagnosed injury and
sequelae
and without having confirmed the
work demands with the employer directly.
[18]
Considering the above, the defendant
submits that the Court must have regard to
the issues as
pointed out, relating to
an undiagnosed injury and
sequelae,
as well as unconfirmed work duties
and the
stale report of the
Industrial Psychologist.
In
the circumstances, the defendant submits that there is no proof that
the plaintiff who has been employed in the
same position for the
last 7
(seven) years, will not be able to
continue in the said position as the employer expressly stated that
there is no threat of plaintiff
losing his job. In amplification
thereof, Dr Oelofse indicated that the plaintiff's symptoms will
improve with treatment.
[19]
Further, that the plaintiff's
calculation of the total loss of earnings as
R930
029
is in stark contradiction to
their own Actuarial report tabling the total loss of earnings as
R754
294.
[20]
Therefore the following calculation is
submitted by the
defendant
to be fair and reasonable in the circumstances:
Pre-morbid
Post-morbid
Difference:
Loss
Past
earnings
R507
038
R336127
Less
Contingency
deductions
5%/5%
R25
352
R16
806
Total
loss
of
Past
earnings
agreed to:
R481
686
R319
321
R162
365
Future
earnings
R1279440
R1279
440
Less
Contingency
deductions
10%/30%
R127
994
R383
832
Total
loss of future
earnings
R1151
496
R895
608
R255
888
Total
loss of
earnings
R418
253
[21]
The basic rule in civil proceedings is
that he who asserts must prove and the standard of proof in a civil
case is on a balance
of probabilities. That degree is well settled.
It must carry a reasonable degree of probability, but not so high as
is required
in a criminal case. If the evidence is such that the
tribunal can say, we think it more probable than not, the burden is
discharged,
but if the probabilities are equal, it is not. This means
that if there is more than one
possible
interpretation
of facts
relating
to
any
particular
issue in dispute, the interpretation least favourable to the party
bearing the onus of proof must be applied.
[22]
Further, in finding facts or making
inferences, the court will select a conclusion which is the more
natural or plausible conclusion
from several conceivable ones, even
though that conclusion may not only be the reasonable conclusion.
[23]
In
considering
the implication of a
suitable
contingency factor to
be
applied to the plaintiffs future earnings post-morbidly, this court
was referred
to
the
case
of
Southern
Insurance
Association
v
Bailey
[8]
where
Nicholson JA held:
"Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is "tied down by inexorable
actuarial
calculations. He has a large discretion to award what he considers
right" One of the elements in exercising that
discretion is the
making of a discount for "contingencies" or "vicissitudes
of life." These include such matters
as the possibility that 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 upon the circumstances of the case."
[24]
Damages for loss of income will be
granted where the plaintiff has suffered or will suffer a patrimonial
loss in that his employment
situation has manifestly changed. The
plaintiff's performance can also influence his patrimony if there is
a possibility that the
plaintiff could
lose his
current job
and be limited in
the number and/or quality of available
choices, should he decide to find other employment.
[25]
In
Goodall
v President Insurance Co Ltd
[9]
it
was stated:
"In
assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or
science of
foretelling the future, so confidently practices by ancient prophets
and soothsayers, and by authors of a certain type
of almanac, is not
numbered among the qualifications for judicial office."
[26]
Upon
a careful perusal of the Orthopaedic Surgeon's Report, compiled by
Drs Oelofse and Deacon, apart from the date of injury being
incorrectly recorded as 12 October 2012, it also incorrectly states
that the plaintiff was employed as a driver at the time of
the
accident,
[10]
whereas
it
is
not
in
dispute
that
plaintiff
was
self-employed
as a painter at the time of the accident.
[11]
One further glean from his report at paragraph 2.2.11 that plaintiff
was taken to theatre on the 21
st
of October 2012, for an open reduction and internal fixation (ORIF)
of the left humerus, again, this is factually incorrect as
the
accident only occurred on the 14
th
of May 2014. Noteworthy, is the fact that the defendant correctly
points out that no complaints of back pain was raised to the
Orthopaedic
Surgeon,
neither was plaintiff diagnosed with any back injury.
[27]
Further,
that the report of Mr Moodie is grounded on the report of the
Orthopaedic Surgeon and that of the Occupational Therapist
[12]
,
who notes that but for the accident, the plaintiff
would
have been able to continue work until the normal retirement age of
65, health permitting. Her report states that though the
plaintiff is
aided by an assistant who goes with him when they off-load together,
prolonged sitting increased the pain in
the
plaintiffs back, and as a
result
of his reduced physical workability, he is not suited for his current
occupation due to the weight handling demands. The
plaintiff is
therefore currently best suited to work that falls within the
sedentary
category. However, the defendant correctly points out that it was
never confirmed with the employer what exactly plaintiffs
duties
entail,
and
whether
as
a
driver,
it was expected of him
to
carry heavy objects.
[28]
With
reference to the case of
Road
Accident Appeal Tribuma
&
Others
v Gouws and Another
[13]
courts
are not bound by the view of any expert. They make the ultimate
decision on issues on which experts
provide
opinion. Expert opinions serve as
a
tool
to
assist the court to come to a conclusion.
[29]
The evidence does not suggest that the
plaintiff will not stay in his current employment, health permitting
and there is no evidence
to suggest that he has been sympathetically
employed for the past 6 to
7
years as a driver. This court takes cognisance of plaintiff's age,
that being 46; that despite the injuries sustained, he has
continuously been employed as a driver, with no complaints from the
employer, and the fact that the plaintiff is in no threat of
him
losing his job. A high contingency as suggested by the plaintiff is
vastly different to the 25% contingency deduction as tabled
in their
actuarial report. The suggestion that there is 90-80% chance of the
plaintiff being unemployable,
is
untenable.
[30]
This
court is mindful of the case of
Pitt
v Economic Insurance Co Ltd
[14]
where
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 out
largesse from the horn of plenty at the defendant's expense."
[31]
Consequently, after listening to the
arguments, submissions made and
considering the
actuarial report, it
is my view and finding that an
appropriate contingeny deduction to be applied would be
45%.
Pre-morbid
Post-morbid
Difference:
Loss
Past
earnings
R507
038
R336
127
Less
Contingency
deductions
5%/5%
R25
352
R16
806
Total
loss
of
Past
earnings
agreed to:
R481
686
R319
321
R162
365
Future
earnings
R1279440
A1279440
Less
Contingency
deductions
10%/45%
R127
994
R575
748
Total
loss of future
Earnings
R1151
496
R703692
R447
804
Total
loss of earnings
R610
169
[32]
I accordingly make an order in the
following terms:
1.1
The defendant is liable for payment of
100% (Hundred Percent) of the plaintiff's proven or agreed damages;
1.2
The defendant shall pay plaintiff the
sum of R610
169.00
(Six hundred and ten thousand one hundred and sixty-nine rand) in
respect of the
Total Loss of
Earnings;
1.3
The
general
damages
to be referred to the HPCSA,
for adjudication.
1.4
The defendant is to furnish an
undertaking to the plaintiff in terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56
of 1996
, insofar as
future
medical and hospital expenses
are
concerned.
1.5
The
defendant is
to pay the
plaintiff's taxed or agreed costs on a
party and party scale to date of this order, including but not
limited to the reasonable
qualifying fees of plaintiff's experts.
AFRICA,
AJ
APPEARANCES:
COUNSEL
FOR THE PLAINTIFF:
Adv.
Cross
Instructed
by:
VZLR Inc
COUNSEL
FOR DEFENDANT: Adv.
Bornman
Instructed
by: State
Attorney
[1]
The Health Professions Council of South Africa
[2]
Paragraph 3 of defendant's heads of argument
[3]
Expert Notice Volume 2 page 174
[4]
Report by Ben Moodie paragraph 6.10 page 21
[5]
Report by Ben Moodie Paragraph 6.10 page 21
[6]
Page 2 of defendant's heads of argument
[7]
Pages 3-4 of defendant's heads of argument
[8]
1984 (1) SA 98
(A) at 99-E-F.
[9]
1978 (1) SA 389
(W) at 392 H-393 A
[10]
Page 59 paragraph 1.2.1
[11]
Paragraph 8.1.1 of defendant's written heads of argument.
[12]
Page 149 of Experts Notices volume 2.
[13]
2018 (1) ALL SA 701
(SCA) at paragraph 33.
[14]
1957 (3) SA 284
(N) at 287-E