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[2022] ZAMPMBHC 81
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Silombo v Road Accident Fund (3062/2019) [2022] ZAMPMBHC 81 (24 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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FLYNOTES:
LOSS OF FUTURE
EARNINGS – CONTINGENCY
Motor
collision – Shoulder injury – Sympathetic employment
by company in sedentary role – Dismissed for
falsifying
leave days – Injuries affecting prospects in open labour
market – Higher than normal contingencies
to take account of
period that he could have been with his employer but for his
dishonesty – 60% deduction for post-morbid.
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE
NO: 3062/2019
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:YES
REVISED:
YES
24/10/2022
In
the matter between:
JUSTICE
NDONGA
SILOMBO
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MASHILE
J:
[1]
The Plaintiff instituted this delictual claim arising in terms of the
Road Accident Fund Act, 56 of 1996
, as amended following a motor
vehicle accident on 9 January 2019 at or along R40, between Mbombela
and Barberton. The Plaintiff
was a passenger in motor vehicle with
registration letters and number [....] driven by his co-employee. The
accident occurred during
the course and scope of discharging their
duties with their employer, Clover.
[2]
Approximately three months following lodgement of the claim, the
Defendant accepted
that the insured driver and/or the owner of the
vehicle was/were hundred percent the cause of the accident and
conceded that it
would be liable for the Plaintiff’s proven
damages. Thus, the matter served before this Court for determination
of quantum
alone merits having been settled as indicated above. The
headings of damages under quantum that still required adjudication
were
general damages, future medical treatment, past and future loss
of earnings.
[3]
The Plaintiff testified on his own behalf to confirm the injuries
sustained during
the accident and treatment received in hospital. It
is common cause among all the experts that his main injury is a
fracture of
the right clavicle or shoulder blade. His evidence was
followed by that of four experts, Dr Kumbirai, Ms Parruque, Messrs
Maritz
and Boshoff, the orthopaedic surgeon, occupational therapist,
industrial psychologist and actuary respectively. The evidence of
these experts was not opposed making it unnecessary to delve into the
intricacies thereof. That said, the evidence of Mr Maritz
and Dr
Kumbirai requires profound consideration.
[4]
The case is unopposed. That said, it is still necessary for the
Plaintiff to allege
and prove his case regardless of the absence of
opposition from the Defendant. The Plaintiff testified that he
returned to work
following a period of convalescence. He stated that
he did not do any work at all as he could not perform his
pre-accident duties
due to a persistent pain in his right shoulder.
His work consisted in carrying and delivering crates of milk at
different places.
The work was strength-demanding. Noting that he was
not suited to perform the work that he did before the accident
anymore, his
employer did not engage him but still paid him until
eventually it dismissed him as a result of being unfit for the job.
[5]
Dr Kumbirai testified that his conclusions derive from
his
interview, clinical examination and the X-Rays of the Plaintiff. The
X-Rays exposed a fracture of the left clavicle, existence
of surgical
plate and screws implanted in his shoulder blade. He further
considered clinical records from Nelspruit Medi-Clinic
made available
to him on behalf of the Plaintiff. Having had regard to this
information, he established that the Plaintiff had
sustained a
fracture of his right clavicle. The fracture was treated surgically
with implants, which were still embedded in his
shoulder blade at the
time of consultation.
[6]
The other injuries pointed out by the Plaintiff appeared to have been
insignificant
with little or no sequelae. He testified that Plaintiff
complained of pain in the right shoulder. The pain is generally
worsened
by lifting of heavy weights and inclement weather. Clinical
examination revealed full range of motion of the right shoulder with
complaints of pain on exertion. He said that this pain produced by
exertion was understandable. He explained that the fracture
of the
clavicle involves fracturing the collar-bone, which has a direct
influence on a person’s ability to carry or lift
weights.
[7]
He added that the Plaintiff’s circumstances have been
aggravated by being right-handed.
The Plaintiff will live with the
chronic pain of his shoulder for the remaining part of his life.
Although Dr Kumbirai did not
know anything about the complexities
surrounding the Plaintiff’s dismissal or loss of work, he
testified that it was logical
that the Plaintiff subsequently lost
his job as a Delivery Truck Assistant. Furthermore, he said, the pain
in the shoulder is likely
to limit the Plaintiff’s choice of
employment as occupations requiring heavy lifting will aggravate his
symptoms.
[8]
The Plaintiff will not be able to fairly participate in the open
labour market as
an equal competitor. Although his WPI is calculated
at 6%, Dr Kumbirai was steadfast that having regard to the sequelae
of his
shoulder injury, the Plaintiff had sustained a serious injury
as envisaged in paragraph 5.1 (“
serious long-term
impairment/loss of a body function
”) of the Narrative Test
(as per
Regulation 3
of the Act).
[9]
Mr Maritz testified
that he examined the Plaintiff with a view to compiling his report.
Subsequent to his consultation with the
Plaintiff he obtained
collateral information from one Ms Van der Bergh who was the
Plaintiff’s manager. Mr Maritz stated
that Ms Van der Bergh
advised him that upon the Plaintiff’s return to work after
recovery from the injuries, it became evident
that he could not
resume his pre-accident duties in consequence of which it was
resolved to accommodate him by allocating him sedentary
work.
[10]
Mr Maritz was advised that the Plaintiff continued to do sedentary
work until he was dismissed
in June 2020. Asked why the Plaintiff was
dismissed, he said that Ms Van der Bergh told him that the Plaintiff
took time-off from
his work regularly to attend consultation with
various experts for purposes of compilation of medico-legal reports.
When he realised
that he had run out of leave days, he falsified them
to remain entitled to additional days. When Clover discovered this,
they held
a disciplinary enquiry, found him guilty and expelled him.
[11]
Mr Maritz
testified that
according to pay slips provided as well as collateral information
obtained from Clover, the Plaintiff was employed
as a Delivery
Assistant since 2008. When the accident happened, he was earning an
average gross income of
R106 105.56
per annum. The amount fell within the median quartile of Paterson A2,
which is for unskilled workers.
[12]
According to Mr Maritz, probabilities are that the Plaintiff would
have continued in the same
earning category. He would most likely
have reached his earnings’ ceiling at the upper quartile of the
same band translating
into
R128 000.00
per annum by the age of
45 without any change in job complexity. Thereafter, his earnings
would have increased on an inflationary
basis only until retirement
at age 65.
[13]
Mr Maritz stated that following the accident, the Plaintiff earned an
average gross income of
R103 584.36
per annum. His overtime
was substantially reduced and he also no longer received a night
shift allowance. The Plaintiff reported
that he was dismissed in June
2020 due to difficulty performing his duties. The expert further
testified that in a telephonic interview
with the employer, the
employer confirmed that they were aware of the accident and were also
well aware of Plaintiff’s resultant
physical limitations and
made every attempt to accommodate him in a different capacity.
[14]
Mr Maritz confirmed that the Plaintiff informed him that he remained
unemployed as he had not
been able to secure suitable alternative
employment. Mr Maritz said that should the Plaintiff obtain
employment in a similar capacity,
which is unlikely, such employment
will mostly be sporadic in nature with prolonged periods of
unemployment in between. The Plaintiff
will always be in need of
accommodation by a sympathetic employer. Considering the extent of
his injuries and
sequelae
thereof, Plaintiff can be considered
to be technically unemployable in the open labour market.
[15]
Ordinarily, evidence of an actuary derives in the main from the
report of an industrial psychologist.
However, in this case the
initial calculations presented by Mr Boshoff were completely out of
tune with those suggested by Mr Maritz,
the psychologist. Mr Maritz
states in his report that when the accident occurred, the Plaintiff
was aged thirty-eight and was already
at the median quartile earning
R106 105.00
per annum. He further postulated that by age
fourty-five he would be at upper quartile earning approximately
R128 000.00.
From this level, his income will not change
save for inflationary increaments until his retirement age estimated
at sixty-five.
[16]
Mr Boshoff, the actuary, commenced with the median quartile figure of
R106 105.00.
Strangely, upon the Plaintiff reaching age
fourty—five, which will be six years later, the figure for his
upper quartile
jumped to
R187 000.00.
This was
extraordinary bearing in mind the figure of
R128 000.00.
put
forward by Mr Maritz. Mr Boshoff attempted to explain why his figure
came out different from that of the psychologist but his
account
remained obscure. He ultimately revised his calculations to be in
line with the report of Mr Maritz.
[17]
The issues that stand for determination from the above facts are
whether or not, on loss of past
and future earnings, the Plaintiff’s
loss emanates from his incapacity occasioned by the accident. If this
question is answered
in the affirmative, the claim ought to succeed
without qualification. Conversely, if the answer is in the negative,
the claim ought
to be assessed on the understanding that the
Plaintiff would have been continued to be accommodated longer than
the date of termination
of his employment with the application of
higher than normal contingencies. Against that background, I proceed
to evaluate the
claim based on loss of past and future loss of
earnings followed by assessment of general damages.
[18]
The Plaintiff has sustained a serious shoulder blade injury, which
has resulted in some form
of incapacity. This much is noted by Dr
Kumbirai in his report. Similarly, Ms Parruque too has noted in her
report that from conducting
tests during her consultation with the
Plaintiff, he was unable to lift weight above 5 Kilograms. Both Dr
Kumbirai and Ms Parruque
have appropriately recommended sedentary
work for the Plaintiff. Clover has from the date of his return to
work acknowledged that
he could not perform his pre-accident duties
and accommodated him.
[19]
Is the Plaintiff’s loss of his employment attributable to the
injuries? The answer is undoubtedly
in the negative. The Plaintiff’s
claim is that on account of the injuries that he sustained during the
accident he is unable
to earn a living. The point is that following
the accident, he was still able to work albeit in a different
capacity. As such,
his loss of employment was not as a result of the
accident but rather that he falsified papers concerning his leave
days. Had it
not been for the falsification of his papers, it appears
that Clover, which had been sympathetic by accommodating him in a
different
position, would have had no reason to expel him. The
Plaintiff would in all probabilities still be receiving his income.
[20]
The Plaintiff knew why he was dismissed but would not disclose this
during his testimony in court.
He wanted to give the Court the
impression that he was expelled due to his incapability to execute
his pre-accident duties. Additionally,
at no stage did he sit idling
at work and paid for nothing until the employer decided to dismiss
him. His dismissal was due to
his dishonesty. The difficulty
confronting this Court is that he has, for whatever reason, lost his
employment. Given his situation,
it is evident that he will struggle
to find another employment in the open labour market.
[20]
The difficulty to find employment post-accident is directly
attributable to his shoulder injury.
For The reasons above, the claim
for past and future loss of earnings must be evaluated applying
higher than normal contingencies
to take account of the longer period
that he could have been with his employer but for his dishonesty.
With regard to the above,
Counsel for the Plaintiff referred me to
cases that support this approach. Firstly, in
Makuapane
v Road Accident Fund
[1]
the
Court said the following:
“
Based
on the credible expert opinions presented, the finding that Plaintiff
is currently in sympathetic employment was irresistible.
The evidence
was overwhelming. … There were numerous decided cases in this
High Court where the courts held that, even if
found to be gainfully
employed post-accident, victims of accidents who no longer functioned
in capacities that they were employed
for, were entitled to damages
since they had suffered a complete loss of earning capacities.”
[21[
Similarly, in
Mvundle
v Road Accident Fund
[2]
,
the
Court stated that:
“
It
is trite that damages for loss of income can be granted where a
person has in fact suffered or will suffer a true patrimonial
loss in
that his employment situation has manifestly changed. The plaintiff's
performance can also influence his patrimony, if
there was a
possibility that he could lose his current job
and/or be
limited in the number and quality of his/her
choices
should he/she decide to find other employment.”
[22]
Lastly, in the matter of
Deysel
v
Road
Accident Fund
,
the
[3]
court
stated:
“
The
problem lies in the fact that the Plaintiff arrives at a final amount
for loss of income not by way of actual evidence of this
diminution
of her estate but instead through the assumption that lowered
performance automatically leads to a situation where lowered
earning
capacity and a lower income come into existence…The only way I
could see her performance influencing her patrimony
is
if
there was a possibility that the Plaintiff could
lose
her current job and/or be limited in the number and quality of her
choices should she
decide to find
other employment.
”
[23]
Against this background, I agree with Counsel for the Plaintiff that
the correct approach would
be to calculate the future loss of
earnings applying high contingencies post-accident. The reason for
the high contingencies is
of course that it is not known how long
Clover would have been sympathetic and accommodated the Plaintiff in
its employ. In line
with the figures of the actuary the following are
the scenarios:
Past
Loss:
Pre-Morbid
R406 500 -
5%
= R386 175
Post-Morbid
R154 300 -
5%
=
R146 585
Sub-Total
R239 590
Future
Loss
Pre-Morbid
R2 314 500
- 15%
= R1 967 325
Post-Morbid
R2 314 500
- 60%
=
R925 800
Sub-Total
R1 041 525
[24]
Insofar as general damages are concerned,
Dr Kumbirai has
during evidence in Court and in his report established that
Plaintiff’s injuries qualify as serious in terms
of the
Narrative Test. The Defendant has not contested this as prescribed in
the
Road Accident Fund Act. The
ninety-day period prescribed in the
Regulations to the Act having come and gone without any objection
from the Defendant, no dispute
exists requiring the intervention of
the Appeals Tribunal of the Health Professional Council of South
Africa (“HPCSA”).
This court is as such, entitled to
assess general damages. In the result, I proceed to consider general
damages below.
[25]
In an endeavour to validate the correctness of the
R450 000.00
claimed for general damages, the Plaintiff has referred this court to
two different but comparable cases. He maintains that the
figure
suggested by him would be the most suitable under the circumstances.
Before considering the cases to which I have been referred,
it could
be wise to mention that it is trite that the utilization of previous
related awards as a guide or foundation in the determination
of
non-pecuniary loss must be preceded by two vital principles.
[26]
Firstly, only the general award and not a comparison of every detail
is taken into account to
determine an appropriate amount and
secondly, that comparison to previous awards is not the technique of
evaluating non-patrimonial
damage and only serves as a trend. It
cannot be used in such a way to prohibit or restrain the discretion
of the Court. This is
true of both cases to which I have been
referred. Neither the one nor the other is exactly similar to the
present but they obviously
bear close similarities.
[27]
In the matter of
Mlatsheni
v RAF
[4]
,
a fourty-nine-year-old
Delivery Driver sustained a dislocation of the left shoulder
complicated by a tear of the rotator cuff tendon. Surgery performed
to repair the rotator cuff tendon. The plaintiff’s left arm was
immobilized in a sling for some six weeks. He was left with
restricted range of movement of the left shoulder. Despite the
treatment received, the plaintiff remained with chronic pain of
the
left shoulder.
An
amount of
R140 000.00
was awarded for general damages. The current value is approximately
R300 000
.
[28]
The second matter is
Mlalandle
v
RAF
[5]
where
a
51-year
old Nurse sustained a fracture of the right clavicle and scapula. The
injury resulted in brachial plexus paralysis in her
right hand. An
open reduction and internal fixation (ORIF) was performed on the
clavicle. She was unable to flex the fingers of
her right hand and
underwent surgery, which was unsuccessful. She was off work for a
year. She remained with significant
loss of strength in her
right hand and struggled to perform the most basic functions. For
practical purposes, the right arm was
of little use to Plaintiff. She
was off work for a year and when she returned she was reasonably
accommodated by her employer.
The court awarded
R325 000.00
,
which in current terms Translates into approximately
R550 000
.
[29]
It is immediately obvious that while both cases bear some degree of
semblance, they are nonetheless
dissimilar. The
Mlatsheni
case is, in
comparison, less serious than the case under consideration.
Similarly, the Mlalandle case is more severe than the matter
in
casu
especially because here the Plaintiff’s right arm is not
totally dysfunctional. The evidence in this case is that the
Plaintiff
retains the ability to lift and carry weight of up to 9
Kilograms.
[30]
It appears that his case falls somewhere between the two cases but
more towards the Mlatsheni
case. For that reason, my sense of justice
is to take the median of the amounts awarded in the Mlatsheni and
Mlalandle matters,
R300 000.00
and
R550 000.00
,
respectively and divide it by two. The result is that an amount of
R425 000.00
must be awarded to the Plaintiff.
[31]
In the circumstances, I make the following order:
1.
The Defendant
is directed to pay to the Plaintiff an amount of R1 706 115.00
made up as follows:
1.1
General damages
R425 000.00
;
1.2
Past loss of earnings
R239 590.00;
1.3
Future loss of earnings
R1 041 525.00.
2.
Interest on
the amount of
R1 706 115.00
at the prescribed rate of interest per annum reckoned from 14 days
following this order to date of payment ….
3.
The Defendant
is ordered to furnish the Plaintiff with a Medical Certificate in
terms of
Section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
,
as amended.
4.
The Defendant
is liable for 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 24 October 2022 at 10:00.
APPEARANCES:
Counsel
for the Plaintiff:
Mr Ndlovu
Instructed
by:
Ndlovu Attorneys
Counsel
for the Respondent:
No appearance
Instructed
by:
Date
of Judgment:
24 October 2022
[1]
(12871/12)
2015 (GSJ)
[2]
(63500/09)
2012 (NG)
[3]
(2483/09)
(SG)
[4]
(418/2005)
2007 ZAECHC 108
[5]
2010
6 QOD J2-90 (ECP)