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2022
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[2022] ZAMPMBHC 6
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Langa v Road Accident Fund (645/2017) [2022] ZAMPMBHC 6 (2 February 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE
NO: 645/2017
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:YES
REVISED:
YES
02/02/2022
In
the matter between:
ALBERTO
EDUWARDO
LANGA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J
U D G M E N T
MASHILE
J:
INTRODUCTION
[1]
The Plaintiff instituted this delictual damages action against the
Defendant for personal
injuries that he sustained during a motor
vehicle accident on 17 October 2015. The collision happened between
the Plaintiff as
a pedestrian and motor vehicle with registration
letters and number
AAX
689 MC (“the insured vehicle”)
at
approximately 23:00 on the N4 Highway towards Karino, Mpumalanga
Province. The insured vehicle was driven by one Julio Titos
Mutola
(“the insured driver”). The action is not defended.
[2]
The Plaintiff’s injuries have been noted on the RAF4 Form as
the fractures of
the right tibia, fibular with torn ligaments of the
knee. He was admitted to the Rob Ferreira Hospital and his treatment
consisted
in putting his right tibia, fibular and ankle in a
back-slab. X-rays of his right leg, ankle and left shoulder were
taken. The
RAF4 also records that no operations could be performed
due to lack of instruments. As a result, he was discharged on 30
October
2015 with a letter to Maputo Hospital for administration of
further treatment.
[3]
Believing that the manner in which the collision occurred renders the
Defendant susceptible
to liability for the injuries sustained by him,
the Plaintiff instituted this action envisaged in the
Road Accident
Fund Act, 56 of 1996
, as amended for compensation under various heads
of damages, amongst which were general damages, future medical
expenses, past
and future loss of earnings. Documentary evidence
comprises the papers with which the Plaintiff’s claim was
lodged and reports
of experts of both parties.
[4]
When the matter served before this Court on 2 August 2021, the
parties had resolved
that:
4.1 The
Defendant accepted that the insured driver’s negligent driving
contributed 80% towards the occurrence
of the collision. As such, the
Defendant agreed to shoulder liability to pay the Plaintiff for any
damages up to 80% that the Plaintiff
may prove against it;
4.2
General damages and past medical expenses were also settled in line
with the agreed 80% liability referred
to above;
4.3 The
Defendant agreed to furnish the Plaintiff with an Undertaking in
terms of
Section 17(4)
of the Act for his future medical expenses on
the basis of the 80% apportionment.
[5]
The upshot of the parties’ agreement is that two issues have
been left for determination
by this Court. Those matters concern the
past and future loss of earnings of the Plaintiff and contingencies
to be applied to both
scenarios. In his endeavour to prove his case,
the Plaintiff testified on his own behalf and was supported by
experts who have
examined him and compiled medico-legal reports
subsequently.
EVIDENCE
[6]
The Plaintiff testified that he sustained injuries to both of his
legs and right arm.
He stated that doctors at Rob Ferreira Hospital
operated on his left leg and drew some fluid. His counsel understood
this to mean
that an internal fixative was inserted during the
operation, which was incorrect. He confirmed that to date the process
of drawing
fluids from his left leg is still ongoing. The hospital
has now removed the plaster of paris from his left leg.
[7]
The highest education attained by the Plaintiff is Grade 9. Following
that, he trained
in ceiling carpentry and qualified as such. When he
became involved in this collision he was self-employed in his area of
specialization.
He testified that he became self-employed in 2012
earning a monthly net income of approximately 70 000.00
Meticals, which
in South African currency is estimated at R12 000.00.
He has not worked in any form since the collision in 2015.
[8]
He could not state precisely when he would retire had the collision
not occurred.
Instead, he stated that he would have carried on until
his body cannot take it anymore. He has not worked in any form since
the
collision and his business that employed him has ceased
operations. The Plaintiff confirmed that he neither has any proof of
his
qualification as a ceiling carpenter nor of his income of
R70 000.00 Meticals per month. He could not produce tax
certificates
nor bank accounts showing movements of amounts on
monthly basis.
[9]
Dr Trotsky is an orthopedic surgeon. He testified that he examined
the Plaintiff in
May 2017 and compiled a medico-legal report
thereafter. He has recorded the Plaintiff’s injuries as:
9.1
Segmental (3 segments) fracture to the right tibia and fibular;
9.2
Laceration to the left arm;
9.3
Abrasions to his left shoulder;
9.4
Possible roata cuff injury.
[10]
The Plaintiff was admitted to Rob Ferreira Hospital for approximately
two weeks. Dr Trotsky stated
that the only treatment that the
Plaintiff received at the Rob Ferreira Hospital was a debridement of
the open fractures in a cast.
He confirmed that according to the
medical records, no internal fixative was inserted. The cast
treatment of the tibia and fibular
fractures continued for a period
of four months.
[11]
When he consulted with the Plaintiff in May 2017, the Plaintiff was
still complaining of constant
pain in his right leg and he told him
that he felt that his right knee was unstable making it impossible
for him to climb step
ladders or stair cases. He also complained of
pain in his left shoulder with decreased range of movement. This, the
Plaintiff told
him, made it impossible for him to work above shoulder
level.
[12]
Prior to the collision, the Plaintiff played soccer but cannot do so
anymore as a result of the
pain in his right leg. The Plaintiff
cannot walk long distances to visit family as a result of which they
visit him. On the day
of the examination, Dr Trotsky stated that the
Plaintiff came in walking with an antalgic painful gait on the right-
hand side.
He walked without the aid of a crutch. He had an atrophy
of the right cuff as well as deformity of his right tibia and
fibular.
[13]
He could not stand on the right leg without the experience of
excruciating pain. Dr Trotsky observed
at that stage that the
Plaintiff also had healed scars on his left shoulder and right lower
leg. He had reduced range of movement
on his left shoulder with pain
on his rotated cuff muscle. In short, he had signs of left shoulder
impingement or stiffness. There
is an apparent 2 Centremetre
shortening of his right lower limb.
[14]
He also noticed atrophy of the Plaintiff’s quadriceps and his
cuff mussels on the right
leg. His knee movements were limited
recording 0 to 90 degrees instead of 0 to 130 degrees. He could not
fully examine his right
knee as the Plaintiff was very guarded due to
pain. This led Dr Trotsky to suspect that the Plaintiff also had a
problem with his
knee joint. Although the fractures were well united,
the Plaintiff was still tender to depalpation.
[15]
The Plaintiff will require surgical intervention to improve or
resolve the tibia fibular mal-alignment,
muscle degeneration as well
as internal derangement of his right knee. The left impinged shoulder
will require physiotherapy to
see if non-surgical management will not
suffice. If he does not respond appropriately, he will need an
arthroscopy or surgical
intervention on the shoulder to create more
space between the bones to stop congestion of the muscles around it.
[16]
The prognosis of the shoulder impingement, testified Dr Trotsky, is
that most injured people
realise improvement if they receive proper
physiotherapy. 60% of injured people who receive such treatment
experience remarkable
improvement after six weeks. The remaining 40%
usually require surgical intervention which is normally arthroscopy.
The tibia fibular
fracture is a permanent injury with shortening of
the right leg. If it is left unattended, it will lead to abnormal
forces around
the knee joint and lower back. The lower back will in
turn cause abnormality to the spine.
[17]
Regarding employability, Dr Trotsky’s evidence was that when he
examined the Plaintiff,
he was unable to climb stair cases or step
ladders or scaffolding due to the instability and pain of his right
knee. For a person
in his type of occupation, he cannot afford not to
climb step ladders. Dr Trotsky reminded this Court that the Plaintiff
told him
that he was a ceiling carpenter and therefore required to
work above his shoulder level. For as long as the Plaintiff has a
shoulder
impingement, he cannot undertake work that requires him to
work above shoulder level. The Plaintiff is now suited for light duty
work but certainly cannot compete equally in the open labour market.
[18]
Ms Charlene Cruickshank is an occupational therapist. She testified
that the Plaintiff told her
that following leaving school, he worked
in the building and carpentry industry in Johannesburg for a period
of one year under
supervision before returning to his country of
birth, Mozambique. On his return to Mozambique, he told her that he
was trained
in the installation of aluminium doors albeit that he
could not furnish proof when requested to do so. He worked
independently
and as a self-employed individual.
[19]
His area of work is classified as a medium labour to heavy as lifting
of material is required
from time to time. He employed two labourers
at any time to assist him. Her further testimony was that the
Plaintiff told her that
he obtained small contracts in Maputo to
install ceilings and aluminium windows and doors. He also concluded
contracts with his
customers to effect alterations to homes. His
duties consisted in obtaining contracts, purchasing material, loading
and delivering
it at various sites. He would measure and erect
scaffolding at those building sites.
[20]
His work involved squatting, lifting material above shoulder level
using both arms and climbing
step ladders, stair cases and going up
elevated areas at the work sites. He was unable to return to his
pre-collision occupation
in consequence of which he advised his two
assistants to seek work elsewhere. The Plaintiff indicated to her
that he has not worked
since the collision. His reasons for not
having done so are mainly that he cannot perform any of the duties
that he performed previously.
[21]
Ms Cruickshank testified that she found his inability to return to
the same occupation after
the collision justifiable because he would
have needed flexibility of his muscles, strength and agility. Lack of
those attributes
automatically disqualified him. Post collision, the
Plaintiff is only suited to occasional light or sedentary work. He
can also
lift a 10 Kilogram weight but again, he cannot sustain it
for extended period. Currently he cannot work for a full day. She
does
not recommend that he does any type of lifting of loads at the
moment for he remains unstable.
[22]
Ms Cruickshank stated that even if the Plaintiff were to undergo the
surgical intervention and/or
physiotherapy recommended by Dr Trotsky,
he would still not be able to return to his pre-collision occupation.
In short, her opinion
is that he is not suited for any employment at
all as a result of the continued pains likely to be experienced. He
cannot sit for
protracted periods because of pain that might result.
In any event, he is not as sophisticated to obtain gainful employment
in
the light or sedentary work categories.
[23]
Ms J White is an industrial psychologist. She testified that she
consulted with the Plaintiff
on 20 August 2016. She observed at the
time that the Plaintiff walked with a limp favouring the right leg.
She said that the Plaintiff
told her that his highest level of
education was Grade 9. Thereafter he received training to fit
ceilings, aluminium windows, doors
and wooden floors. Only one of his
siblings managed to attain a matric level of education.
[24]
She confirmed that the Plaintiff told her that he ran his own
business, which employed two labourers.
He paid them approximately
R200.00 per day each. The Plaintiff told her that he earned a net
profit of about 35 000.00 Meticals
per month, which translated
into about R7 000.00 per month at the time. He has not returned
to any form of employment since
the collision. Her findings insofar
as pre-collision period is concerned is that he would have continued
with the operation of
his business venture.
[25]
In the absence of any facts to the contrary, she stated that he could
have progressed from being
a semi-skilled to Koch’s upper
quartile by the age of 45 and thereafter normal increases until age
65 or more as he was self-employed.
She places the Plaintiff at the
level of a semi-skilled employee because the nature of the work was
somewhat sophisticated, he
owned the business venture and he
supervised the people that he employed. Ms White did not have any
collateral information to buttress
the Plaintiff’s claim of a
business venture, employment of two labourers and the amounts that
the Plaintiff paid them.
[26]
She also stated that the Plaintiff reported to her that by 2015 he
was earning an amount of R93 876.00
per annum, which she said
was realistic. Post-collision, she testified, the Plaintiff is likely
not to have any employment at all
as a result of his injuries. Over
and above the injuries, he only has a Grade 9 level of education and
sedentary or light work
will be too demanding exposing him to
possible reinjury. Counsel for the Plaintiff sought to suggest that
the discrepancy in the
income that he claimed to have earned and that
which he reported to Ms White was the result of misinterpretation.
[27]
Ms Lisa Schreiber is the actuary. The actuarial assumptions that she
made for purposes of calculating
the loss of the Plaintiff are as
follows:
27.1 Inflation was
equivalent to the Mozambiquen an CPI index from the collision date
until January 2021 and 5% thereafter;
27.2 Earnings
inflation was 6% per year in future;
27.3 She applied
the Mozambique personal income tax rates tables to past income and
assumed that in future these would be
adjusted to allow for earnings
inflation.
[28]
She then discounted the annual income at which she arrived using the
net discount rate, which
is at 2.5%. Due to lack of access to
Mozambique mortality tables, she used Life Table 5 of the Koch’s
Quantum Year Book 2021,
which is based on South African data. She did
not deduct any disability benefits nor did she make any contingency
deductions. Based
on that information, the figures for the
pre-collision period remain the same. For the future loss, she used
the same basis to
arrive at the figures described in her report.
RECALLING OF THE PLAINTIFF
[29]
Counsel for the Plaintiff asked this Court if he could recall the
Plaintiff to clarify the different
evidence that the Plaintiff has
levied before court. On the one hand he told the court that he earned
an amount of 70 000.00
Meticals per annum yet Ms White testified
that the Plaintiff had told her that he earned 35 000.00
Meticals per annum. the
court allowed the Plaintiff to take the stand
once again but it soon transpired that his Counsel wanted him for
more than clarification
of the discrepancy aforesaid. As subtly
hinted to him by his Counsel, the Plaintiff attributed the
differences in amounts to misunderstanding
between he and Ms White.
[30]
His Counsel asked if he had any supporting documentary evidence to
prove his income to which
he said yes. Surprisingly, he was unable to
levy such evidence before the court. He said that he had three major
clients for which
he did work and those paid him through the bank. It
was only the odd smaller contract jobs that paid him in cash. Asked
if he had
any proof of money flowing in and out of his bank account
emanating from transactions of his contract work, he said that he did
but failed to produce bank statements.
[31]
The court was then requested to admit into evidence the affidavits of
two labourers who used
to work for the Plaintiff, which it did but
emphasized that it was not a guarantee that they would subsequently
be of any value
in determining the outcome of this case especially as
they did not testify when they could have virtually.
[32]
The actuary was instructed to estimate
the
expected present value of the Plaintiff’s income to be used as
a guide to determine a lump sum award for fair compensation
for
earning capacity suffered by the Plaintiff. The present value is
calculated as at 1 March 2022. When calculating the loss of
income,
the actuary confirms that she was mindful of the amendment to the
Road Accident Fund Act and
concluded that the introduction of the
limit does not have any influence on the figures.
[33]
The actuary further notes that her instructions from the attorneys of
the Plaintiff were that
she ought to
calculate
the loss in Rands using scales applicable to South Africa
notwithstanding that the Plaintiff lived and worked in Mozambique.
As
such, she has used the equivalent South African interest, inflation
and income tax rates. Thus,
she
assumed that had the accident not occurred, the Plaintiff’s
income would have been as follows:
33.1
He would have started working on 1 January 2016 earning R7 700.00
per annum (lower quartile earnings, unskilled
workers, July 2016
terms);
33.2
The income aforesaid would have increased in a straight line until
reaching R97 000.00 per annum (upper quartile
earnings,
unskilled workers, July 2022 terms) at age 45;
33.3
Thereafter, increasing with inflation until retirement at age 65
(Basis A), alternatively at age 70 (Basis B).
[34]
Insofar as income having regard to the accident, she was instructed
to assume that as a result
of the accident, the Plaintiff has not
worked since the accident and would not be able to work in future.
The basis of her calculation
and assumptions were that historical
evidence suggests that earnings inflation exceeded price inflation by
between ½% and
2% per year over the long-term. For the
purposes of the calculation, she allowed for earnings inflation of 1%
above price inflation.
Price inflation was assumed to be equal to the
increase in the CPI-index from the accident date until December 2021
and 5% per
year thereafter. She records that the implication is that
she has assumed earnings inflation of 6% per year in future.
[35]
With regard to income tax, she applied the personal income tax tables
to past income. In respect
of future income, she applied the most
recent income tax tables, adjusted to allow for earnings inflation.
She then proceeded to
calculate the present value of income, had the
accident not occurred, by discounting the net projected income
allowing for interest
and the Plaintiff’s probability of
survival.
[36]
The Plaintiff was born on 1 May 1982. The actuary states that in the
absence of comprehensive,
reliable and up to date mortality tables
for the Mozambique population, she has assumed life expectancy in
line with Life Table
5 of Koch’s Quantum Yearbook 2022.
[37]
The
present value of past income was simply taken as the income between
the accident and calculation dates without allowing for
interest. In
order to allow for the investment income that could be earned on the
lump sum award, she discounted the projected
future income back to
the date of calculation at a net discount rate of 2,5% per annum. The
net discount rate of 2,5% per annum
in conjunction with the earnings
inflation described above imply an assumed investment return of 8,65%
per annum.
[38]
Insofar as disability benefits are concerned, she did not deduct any
because no information was
volunteered in this regard. Regarding
general Contingency Deduction,
Results
are shown before allowing for general contingency deductions, which
means that the court must use its discretion.
[39]
Using the information above, on Basis A, the actuary arrived at a
past loss of income of R179 496.00
being for the period between
1 January 2016 and 28 February 2022. On future loss of earnings and
still on Basis A, she computed
the loss to be R1 393 107.00 for
the period, 1 March 2022 to the year on which the Plaintiff will turn
age 65. The total loss
amounts to R1 572 603.00.
ISSUES
[40]
From the above evidence this Court is required to decide:
40.1 The award to
be made to the Plaintiff in respect of past loss of earnings;
40.2 The award to
be made to the Plaintiff in respect of future loss of earnings;
42.3 The
contingencies to be applied to both the past and future loss of
earnings.
LEGAL FRAMEWORK
[43]
Rule 38(2)
provides as follows:
“
The
witnesses at the trial of any action shall be examined
viva
voce
, but a
court may at any time, for sufficient reason, order that all or any
of the evidence to be adduced at any trial be given
on affidavit or
that the affidavit of any witness be read at the hearing, on such
terms and conditions as to it may seem meet:
Provided that where it
appears to the court that any other party reasonably requires the
attendance of a witness for cross-examination,
and such witness can
be produced, the evidence of such witness shall not be given on
affidavit.”
[44]
It has become fashionable for practitioners especially in undefended
Road Accident Fund matters
to insist that evidence of their witnesses
be presented in an affidavit form and avoid to present viva voce
evidence. This may
of course, under appropriate circumstances, be
permissible but it cannot be demanded as of right. It is evident from
the provisions
of the Rule that the evidence of witnesses ‘shall
be examined
viva
voce….,’
Ordinarily
therefore, evidence of witnesses in a trial must be levied by a
witness taking the stand.
[45]
The above said, the Rule also envisages that there might be those
instances where, for good reasons,
it may not be possible for
witnesses to testify by physically taking the stand in a trial. In
those situations, the Rule proceeds
to provide that:” …
but a court may at any time, for sufficient reason, order that all or
any of the evidence to be
adduced at any trial be given on affidavit
….” This means that the court ought to be satisfied that
it is not possible
for a party to secure the oral evidence of a
witness. Reference to the word, sufficient’, should be
understood to mean that
the reasons for a court to depart from the
normal must be substantial.
[46]
With the introduction of virtual hearings, cases where parties will
not be able to adduce oral
evidence have become circumscribed.
Reasons for this are plentiful, witnesses do not have to travel to
court and be accommodated
in hotels. All that needs to happen is the
provision of a garget that can serve as a means of communication.
Accordingly, witnesses
adducing evidence to a court in this country
while abroad OR IN SOME PERIPHERAL PART OF THIS COUNTRY have become
daily occurrences.
A party to proceedings ought to provide sound
reasons why it cannot call a witness to adduce oral evidence.
[47]
Parties in Road Accident Fund matters have often argued that it is
pointless to call witnesses
to take the stand where the action is not
defended. Such assertion, it would seem, derives from the last
portion of
Rule 38(2)
which states that: ‘Provided that where
it appears to the court that any other party reasonably requires the
attendance of
a witness for cross-examination, and such witness can
be produced, the evidence of such witness shall not be given on
affidavit.”.
[48]
Cross-examination of a witness is one instance where
viva voce
evidence may need to be levied but another is where the court itself
feels that there are matters that need clarification by a
witness.
Thus, prior to parties placing reliance on the part of
Rule 38(2)
,
that contemplates that is possible to present evidence on affidavit,
they also need to remind themselves that they are expected
to advance
sufficient reasons for such proposition.
[49]
Turning the onus of proving a claim. The general rule is that ‘he
who alleges must prove’.
This is notwithstanding the fact that
the matter is defended or undefended. That this is so is clear from
the provisions of
Rule 39(1)
, which stipulates that:
“
If,
when a trial is called, the plaintiff appears and the defendant does
not appear, the plaintiff may prove his claim so far as
the burden of
proof lies upon him and judgment shall be given accordingly, in so
far as he has discharged such burden. Provided
that where the claim
is for a debt or liquidated demand no evidence shall be necessary
unless the court otherwise orders.”
[50]
To the extent that virtually without exception, the Road Accident
Fund actions constitute illiquid
claims, plaintiffs are required to
allege and prove their claims lest the court might grant absolution
from the instance. The fact
that an allegation has been made and it
is not opposed does not mean that it has been proved.
[51]
This court agrees with the basis used by the actuary in the
calculation of the loss. The differences
obviously lies in the
contingencies to be applied to both past and future loss of earnings
on the one hand, and the Plaintiff’s
rapid elevation from lower
quartile to higher quartile within a period of 10 years. It is trite
that there are fundamentally two
ways in which the court can approach
this subject and these are:
51.1 the court may
ascertain a practical and realistic amount of loss based on the
verified facts and the existing circumstances
of the case; or
51.2 the court may,
with reference to mathematical computation, determine an amount made
on the demonstrated facts of the
case using such calculation as a
foundation for its award. See in this regard the case of
Southern
Insurance Association v Bailey N.O.
1984 (1) SA 98
(A).
[52]
At times the court is faced with instances where there exists no
sufficient information. In those
cases the “gut feel”
approach is normally ideal the proviso being that the plaintiff puts
at the court’s disposal
adequate evidence to enable the court
to appraise such financial loss. The Plaintiff is contending for a 5%
contingency deduction
on past loss and a 15% deduction on future
loss. The Plaintiff believes that these contingencies sufficiently
take into account
all the vicissitudes of life, such as high
unemployment rate in Mozambique.
[53]
In the case of
Goodall v President Insurance Co Limited
[1978]
1 ALL SA 101
(W),
the court applied a 10% contingency deduction.
The rationale behind that higher contingency was that the shorter the
period over
which contingency deduction is to be applied the lower
the deduction and the converse, the higher the contingency deduction.
It
seems that the instant case fits the model. The Goodall matter
supra
concerns an older plaintiff who was qualified in a
certain trade and was near retirement age. A lower contingency
deduction was
applied. Had the opposite been true, a higher
contingency would have been appropriate.
ANALYSIS
PAST LOSS OF INCOME
[54]
The Plaintiff has evidently sustained serious bodily injuries that
have left him markedly disabled.
The loss that he has suffered is the
difference between what he would have earned had the collision not
occurred and the income,
if any, that he is currently able to earn
taking into consideration his injuries and their sequelae. Prior to
the collision, the
evidence is that he could climb step ladders, walk
up ramps, could reach all elevated areas, could lift weight beyond 10
Kilograms,
could work above shoulder level. Tersely, he was strong,
agile and fit. Now he is weak, pathetic and unable to provide for his
family.
[55]
According to Dr Trotsky, the Plaintiff’s injuries have left him
permanently disabled with
little hope that he could still return to
his pre-collision occupation which was strength demanding in nature.
This is confirmed
by Ms Cruickshank who states that the Plaintiff
cannot return to his pre-collision employment as he cannot engage
himself in any
work that requires strength. As I understand it, the
fact of the Plaintiff being physically disabled is not in dispute and
this
court accepts it without any reservation.
[56]
The above said, it is manifest that the level of education attained
by the Plaintiff and the
income that he earned from his alleged
business venture cannot readily be accepted. Firstly, the Plaintiff
would have this Court
believe that he went up to Grade 9 in
circumstances where he did not present any form of documentary
evidence in the form of a
certificate or even a letter from the
school that he attended. This being the era of virtual hearings, even
an arrangement for
someone from his school to testify could have been
made. Accordingly, his evidence that he has a Grade 9 level of
education has
not been proved on a balance of probabilities and is
rejected.
[57]
Turning to the Plaintiff’s post school technical qualification.
The Plaintiff’s claim
is that following his attainment of Grade
9, he went on to train as a ceiling carpenter and fitting of
aluminium windows. Ms White,
the industrial psychologist, added that
the Plaintiff also told her that he also trained to install wooden
floors. The Plaintiff
himself never said anything about installation
of wooden floors. The obvious problem that any court would have with
this kind of
evidence is that none of all this can be objectively
ascertained. Additionally, Ms White could not present any collateral
information
to serve as support for the allegations.
[58]
The court was not given the name of the institution where the
Plaintiff received his training.
Not even evidence of his business
venture or of the work that it undertook during its existence. The
Plaintiff testified that he
had done work for three major customers
who paid him through the bank. Assuming that due to their business
commitments, it was
hard to secure their oral evidence, which is not
the evidence before court, surely, they could have been requested to
provide some
form of documentary evidence and the debate would have
centred around admissibility of such evidence.
[59]
More startling is the industrial psychologist’s testimony that
she did not have any collateral
information to buttress the
information that she received from the Plaintiff yet she wants this
court to accept the figures of
his income without questions. All she
had is a document that could have emanated anywhere partly written in
Portuguese and the
balance in English. The document does not confirm
that he installed ceilings, aluminium windows and wooden floors. The
document
merely contains different figures, which are claimed to be
what the Plaintiff would charge his customers for each contract work
that he undertook. The Plaintiff has as such, failed to establish on
a balance of probabilities that he was a semi-skilled employee
who
was self-employed.
[60]
Similarly, with regard to proof of income, the Plaintiff has failed
on a balance of probabilities
to establish that he earned the amounts
that he presented before court. Firstly, it is disquieting that he
told this Court that
he earned a net income of 70 000.00
Meticals per annum. On the other hand, Ms White was categorical
during her examination
in chief that the Plaintiff told her that his
net income was 35 000.00 Meticals per annum.
[61]
Confronted with this apparent discrepancy, the Plaintiff’s
counsel attempted to spin it
by suggesting to Ms White that the
conflicting amount might have been the result of the Plaintiff and
she misunderstanding each
other. It is inconceivable that all the
contents of her report are correct and that confusion only crept in
when the amounts were
discussed. This happened in circumstances where
Ms White had an interpreter throughout the consultation. This is
highly unlikely.
The evidence of both the Plaintiff and Ms White on
this aspect is improbable and it is rejected.
[62]
Assuming that the court was willing to accept that the Plaintiff
indeed earned the stated amounts,
the Plaintiff failed to demonstrate
that any amount went through his bank account or that he had tax
records showing that he paid
tax for what he earned. In an attempt to
explain this, he stated that he was paid in cash. However, this comes
head to head with
his concession that most of his payments came from
three large regular customers who paid him through the bank. Asked
where the
bank records are, conveniently he said that the bank had
closed all of them.
[63]
The Plaintiff could not even produce proof that he paid tax to the
tax authorities for his income.
This would have served as proof that
indeed he earned the amounts that he claims. What is strange is that
all this information
could have been obtained with relative ease. If
that is the case, the obvious question is, why did the Plaintiff not
do so? The
answer is not difficult to fathom – the amounts are
imaginary. The amounts upon which the actuary based her calculations
must be incorrect and it was for this reason that I requested a
recalculation.
[64]
The industrial psychologist referred to two affidavits of two
labourers, Messrs Machaieie and
Muianga, claiming to have been in the
employ of the Plaintiff before the collision. Another affidavit
referred to is one by an
alleged former employer, Mr E Nhamago who
claims that the Plaintiff was working for him prior to the collision
earning an amount
of 90 000.00 Meticals per annum. The Plaintiff
made no reference to Mr Nhamago during his testimony in court. That
said, I
note the actuary’s remark that the income stated by Mr
Nhamago was not utilized for purposes of the calculation of the
Plaintiff’s
loss of income.
[65]
The employment of Messrs Machaieie and Muianga is confirmed by the
Plaintiff in his affidavit
albeit that their salaries differ
remarkably. The Plaintiff’s evidence in court was that he paid
the labourers approximately
R200.00 per week whereas Messrs Machaieie
and Muianga declare that he paid them 5 000.00 and 7 000.00
Meticals per month
respectively. The affidavits were introduced to
serve as proof of employment, the amount earned and how much profit
the Plaintiff
made.
[66]
The affidavits do not and cannot constitute proof of the Plaintiff’s
income nor can this
Court use such information to infer that the
Plaintiff’s income was 70 000.00 Meticals per month.
Moreover, this happens
in circumstances where this court was not
advised why the two could not testify in court or virtually. This
court also find it
extremely strange that Messrs Machieie and Muianga
knew that their employer, the Plaintiff, made a profit of 70 000.00
Meticals
per annum. Such information is usually not disclosed to
employees.
[67]
Besides, it is not precisely clear how much the Plaintiff paid the
labourers, if there were any
such labourers at all. His evidence is
radically different from that stated in the affidavits and his own
before court. The Plaintiff
has not demonstrated that he was skilled
or semi-skilled, self-employed, earning income in the amount alleged
nor that he employed
two labourers that he paid the amount stated at
the time when the collision occurred. As such, he has failed to prove
that he has
lost income pre-collision.
FUTURE LOSS OF
EARNINGS
[68]
The above said, for future loss of earnings, it can be assumed, as
did the actuary, that he could
have become employed on 1 January 2016
until 28 February 2022, which will constitute his past loss of
income. His future loss of
income for purposes of calculation of the
loss will begin on 1 March 2022 until his retirement age, assumed to
be 65. In the result,
the injuries of the Plaintiff and their
sequelae are accepted. In essence, the court has no difficulty in
admitting the evidence
of Dr Trotsky, the othorpaedic surgeon, and
parts of Ms Cruickshank, the occupational therapist. Such evidence
would, in the main
pertain to the sequelae of the injuries and not of
his training or qualification.
[69]
I have already mentioned that the Plaintiff is contending for
contingency deductions of 5% and
15% on past and future loss of
earnings respectively. It is noteworthy that the Plaintiff invokes
those normal deductions in circumstances
where he had no skills or
striking income on which to base a calculation. The contingencies to
be applied in this specific case
should be higher than normal. The
authority of Goodall
supra
is that the longer the period over
which the contingency are to be applied, the higher the contingencies
and the shorter the period,
the lower the contingencies.
[70]
5% for past loss and 15% contingency deductions for future loss are
too small if one has regard
to factors such as:
70.1 the
possibility of mistakes having been made in the determination of the
life expectancy of the Plaintiff;
70.2 Accidents
which may affect his earning capacity and life expectancy;
70.3 Circumstances
which would increase or decrease his cost of living;
70.4 the likelihood
of illness, inflation and adjustment for costs of living allowance;
70.5 the fact that
the Plaintiff lives in a violent and lawless neighborhood which
increases the risk of him being killed
or assaulted; and
70.6 the likelihood
of the Plaintiff being fired or retrenched.
[71]
I might add that the harsh reality is that, young adults with grade
12 qualifications and even
university qualifications struggle to find
employment. In all probabilities therefore the indication is that the
Plaintiff, armed
with a Grade 9 qualification, which was not even
proved, with a severely injured right leg, would not have been spared
from these
stark complexities in his life.
[72]
This Court prefers to employ the method referred to in Paragraph 52.2
supra
. I have noted that the actuary did not apply any
contingencies whatsoever. In that event the court will consider all
appropriate
circumstances and apply what it regards as fair and just.
The court will therefore with the figure suggested by the actuary in
mind apply contingencies such as those mentioned under Paragraph 70
supra
. Furthermore, this court is not satisfied with the rapid
advancement of the Plaintiff from the lower quartile to the upper
quartile.
To be specific, from earning R7 700.00 per annum at
age 35 to R97 000.00 when he turns age 45.
[73]
The actuary has made provision for two basis of calculation. The one
extends to age 65 while
the other goes up to age 70. The motivation
for the latter was the alleged self-employment of the Plaintiff. In
other words, the
argument was that in most cases people who are
self-employed usually work beyond the normal age of retirement. Now
that I have
found that the Plaintiff was not self-employed and that
the cut-off must be age 65, there is no reason to take it that far.
CONTINGENCIES
[74]
Having taken all the factors into consideration, I have come to the
conclusion that 10% contingency
deduction be applied to the amount of
past loss while 25% should be applied to the future loss of earnings.
After applying those
contingencies the total award comes to
R1 206 376.65….
ORDER
[75]
In the circumstances, I make the following order:
1.
The Defendant is
directed to pay to the Plaintiff an amount of R1 206 376.65;
2.
Interest on the amount
of R1 206 376.65 at the prescribed rate of interest if the
amount is not settled within 14 days
of the date of this order;
3.
The Defendant will bear
the costs of the Plaintiff.
______________________________
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 02 February 2022 at 10:00.
APPEARANCES:
Counsel
for the Plaintiff:
Adv L Botha
Instructed
by:
Du Toit-Smuts
Attorneys
Counsel
for the Defendant: No
Appearance
Instructed
by:
Date
of Judgment:
02 January 2022