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 286
|
|
Sello v Road Accident Fund (3434/2017) [2022] ZAFSHC 286 (21 September 2022)
FLYNOTES:
LOSS OF INCOME – PROOF
Motor
accident – Leg fractures – Supporting evidence lacking
to prove inability to work – Plaintiff aged
16 at time of
collision and had dropped out of school – Not yet having a
career – High contingencies cannot cure
lack of evidence –
Claim for past and future loss of income dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3434/2017
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
TSEKANE
SHANDRAY SELLO
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
RAF
CLAIM No: 560/12352463/328/0
RAF
LINK No: 3414319
HEARD
ON:
26 & 27 JULY 2022
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 11h00 on 21 September 2022.
[1]
This is a claim for loss of past and future income resulting from the
injuries the
plaintiff sustained as a pedestrian on 14 December 2014
after being struck by a motor vehicle driven by Mr. O. van der Walt.
[2]
Pursuant to the accident, the plaintiff instituted a claim against
the defendant for
payment of the amount of R1 597 870.00
under the following heads of damages:
2.1.
Future medical expenses
R85 720.00
2.2.
General damages
R450 000.00
2.3.
Past and future loss of income
R1 062 150.00
[3]
On 4 September 2018 the defendant conceded the merits 80% in favour
of the plaintiff
for proven or agreed damages and subsequently
undertook to furnish the plaintiff with the statutory undertaking for
future medical
expenses in terms of section 17(4) (a) of the Road
Accident Fund Act 56 of 1996 (“The Act”). The plaintiff
has since
abandoned her claim for general damages.
[4]
It is common cause that at the time of the accident the plaintiff was
16 (sixteen)
years old and had left school before completing grade 6
(six). As a result of the accident, she sustained tibia and fibula
fractures
of the left lower leg. She was transported from the scene
of the accident by an ambulance to Mohau hospital where she was
admitted
until she was transferred to Bongani hospital on 18 December
2014. At Bongani hospital she underwent surgery to repair the
fractures,
she was ultimately discharged with crutches on 8 January
2015. The plaintiff regained independent mobility during May 2015,
afterwards
she did not undergo further medical treatment.
[5]
By agreement between the parties, the matter is determined on the
basis of the parties’
respective heads of argument and the
plaintiff’s expert reports by the orthopaedic surgeon Dr
Oelofse, occupational therapist
Ms Alana Stroebel, industrial
psychologist Dr Evert Jacobs and actuaries Munro Actuaries. No oral
evidence was led by either party.
[6]
The plaintiff’s claim is premised on the grounds that
immediately before the
accident she had been employed for a month as
a general worker at a butchery and earned R500.00 per week. Her
duties involved stuffing
sausages, cutting, wrapping and packing meat
whilst standing or seated and also walking around. As a result
of the accident,
she did not return to work and due to the
dilapidating effect of the injury she will no longer be able to
withstand the physical
demands of her work. She has consequently
suffered a loss of earnings in the amount of R849 720.00 after
having applied 20%
apportionment on the amount of R1 062 150.00
as quantified by the Actuary.
[7]
The experts state that the injury has left the plaintiff with
permanent deficits she
must therefore not be allowed to do any
physical labour, she must be accommodated in a permanent light duty
or sedentary work environment
which she can manage until she retires
at the age of 60 (sixty) however, due to her low level of education
and minimal (1 month’s)
work experience, it would be difficult
for her to find a new job in particular a sedentary position. The
plaintiff has become an
unequal competitor in the open labour market
as compared to her uninjured peers. She will have limitations in
meeting the requirements
of full range light and medium work.
[8]
According to the Actuary, the plaintiff has suffered loss of earnings
totalling an
amount of R1 062 150.00 made up as follows:
8.1.
Past loss of income in the amount of: R219 545.00 (R231 100.00
less 5% contingencies)
8.2.
Future loss of income: R842 605.00 (R991 300.00 less 15%
contingencies)
[9]
The defendant contends that the plaintiff is not entitled to the
amount she seeks
and aver that the plaintiff’s salary before
the accident has not been verified. The industrial psychologist did
not even
attempt to obtain the information in that regard and there
is also no explanation provided as to why the information was not
obtained.
[10]
The defendant submits that due to the lack of corroborating evidence
the contingencies to be
applied should be higher than those suggested
on behalf of the plaintiff. Furthermore, the plaintiff’s
experts have proffered
contradictory evidence with regard to the
plaintiff’s injured scenario. According to the Actuary the
injury has rendered
the plaintiff unemployable whilst the
Occupational Therapist indicates a residual capacity to work and
except to state that the
plaintiff can no longer work as a general
worker at a butchery, there is no evidence that she cannot work in
other employment environments.
[11]
It is the defendant’s case that the amount that would be just
and equitable under these
circumstances would be an amount of R325
000.00 (three hundred and twenty-five thousand rand) after having
applied 10% and 30%
contingency deductions to past and future loss of
income pre-morbid and 50% contingency deductions in relation to the
post-morbid
position.
[12]
The onus is on the plaintiff to tender
sufficient
evidence of her income to enable the court to assess and quantify her
loss of past and future earnings.
[1]
[13]
The plaintiff did not testify in support of her allegations that at
the time of the accident
she was earning an income but due to the
injuries she sustained in the accident her earnings have been
diminished. instead, she
has relied on expert reports which are not
substantiated by any collateral evidence. In fact, the
Actuary
abnegates the amounts on the basis that ‘…
the
earnings as the date of the accident are unverified. We have not been
provided with collateral evidence to verify the earnings
information.
We have based our calculations on these proposed earnings, but defer
to fact
.’ The
actuarial calculations do not provide any assistance to this court.
[14]
In the plaintiff’s heads of argument, reference is made to the
adverse effect of the injury
on the plaintiff’s “career”
and this is despite the fact that on the established facts the
plaintiff has no career,
at least not yet, she left school at a
tender age of 16 (sixteen) before she even completed grade six and
after having failed various
grades.
[15]
No evidence has been tendered to support the contention that
the
plaintiff is no longer be able to withstand the physical demands of
her work.
On
the plaintiff’s own submission, she did not return to work
after accident, it is assumed without factual evidence that
her
employer
would have declined to accommodate her in a sedentary position.
[16]
As correctly contended in the
defendant’s heads of argument, there is
no evidence that
as a result of the injury the plaintiff cannot work in other
employment environments.
[17]
The function of damages is to
place the plaintiff in the position that she would have been in but
for the accident. On the available
evidence I’m not persuaded
that the injury sustained by the plaintiff had a cognisable effect on
her pre and post-accident
earnings. The plaintiff’s prospects
of obtaining employment could be curtailed by her lack of education,
and skills including
the general economic conditions prevailing in
this country, not the deficits resulting from the injury.
[18]
I’m not in agreement with the defendant’s contention that
applying higher contingencies
to reduce the quantum would cure the
inadequacy of the plaintiff’s evidence. The assessment of
the amount to be awarded
as damages only arises after a plaintiff has
proffered sufficient evidence to prove the alleged loss of income.
[2]
As pointed out in
Rudman
v Road Accident Fund
[3]
,
an award for damages cannot be based upon speculation. It must have
an evidential foundation.
[19]
For the reasons that I have set out above, I’m not persuaded
that the plaintiff is entitled
to the award she seeks.
Accordingly, I make the following order:
1.
The
plaintiff’s claim for past and future loss of income is
dismissed with costs.
2.
The
defendant shall furnish the
plaintiff with an undertaking as envisaged in Section 17(4)(a) of the
Act for 80% of the costs of the
future accommodation of the plaintiff
in a hospital or nursing home or treatment of or rendering of a
service to her or supplying
of goods to her arising out of the
injuries sustained by her in the motor vehicle collision which
occurred on 14 December 2014
after such costs have been incurred and
on proof thereof.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the plaintiff:
Adv. HJ van der Merwe
Instructed
by:
Honey Attorneys
michelle@honeyinc.co.za
BLOEMFONTEIN
Counsel
on behalf of the defendant:
Ms. C. Bornman
Instructed
by:
Office of the State attorney
Email:
charleneb@raf.co.za
BLOEMFONTEIN
[1]
Mlotshwa
v Road Accident Fund
(9269/2014)
[2017] ZAGPHC
(29 March 2017) paras 14 to 17.
[2]
Road
Accident Fund v Kerridge
2019
(2) SA 233
(SCA) para 25.
[3]
2003
(2) SA 234
(SCA)
para 11.