Francois v Road Accident Fund (63872/16) [2021] ZAGPPHC 884 (8 February 2021)

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[2021] ZAGPPHC 884
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Francois v Road Accident Fund (63872/16) [2021] ZAGPPHC 884 (8 February 2021)

SAFLII
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Certain
personal/private details of parties or witnesses have been redacted
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 63872/16
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
YES
In the matter
between:
CRAFFERT,
FRANCOIS
Plaintiff
and
ROAD ACCIDENT
FUND

Defendant
JUDGMENT
FLATELA; A.J
Introduction
[1]   The
matter was allocated to me on 29 October 2021 for the determination
of loss of earnings and past and future medical
expenses. The
liability and quantum in respect of general damages have been
settled. The defendant is liable for 20% of the plaintiff’s
proven
damages. The general damages were settled in the amount of R
180 000.00 (One Hundred and Eighty Thousand Rand Only).
[2]
On the 24 January 2015, the plaintiff, a scrapyard owner sustained
serious injuries on the R37 road between Lydnburg
and Sabie whilst
driving a motorcycle with registration numbers [….]. The plaintiff
alleges that an unknown motor vehicle moved
into his lane and forced
him off the road.  The plaintiff was injured as a result of the
negligent driving of the insured driver.
Neither the owner nor
the driver could be established.
[3]   The
plaintiff was hospitalised and treated at Nelspruit Medic Clinic.
[4]   The
plaintiff seeks past medical expenses in the amount of R530 000.35
[5] In terms of the
amended particulars of claim, the Plaintiff has sustained certain
bodily injuries, not limited to but including:
5.1   Left
knee dislocation;
5.2
Fracture of the left tibia and fibula;
5.3
Fracture of the sternum;
5.4
Internal injuries;
5.5   A
comminuted fracture at the base of the left third metatarsal;
5.6   An
oblique fracture of the right scapula;
5.7
Severe scarring and disfigurement;
5.8
Multiple bruises, abrasions and lacerations;
5.9 Psychological
and Psychiatric sequalae as a result of the injuries sustained
in the accident;
5.10 Traumatic brain
injury with neuropsychological and neuropsychiatric
sequelae;
5.11 Soft tissue
injuries of the cervical spine and lumber spine.
[6] As a
result of the injuries sustained, the plaintiff suffered the
following:
6.1
Estimated Past Medical and Hospital expenses
R 3 000 000.00
6.2
Estimated future medical and hospital expenses
R
350 000.00
6.3
Estimate past and future loss of income
R
6 580 125.00
6.4
General Damages

R
1 500 000.00
6.5
TOTAL

R
11 430 125.00
Future Loss of
Earnings
[7] The plaintiff
contends that he suffered loss of earnings in the amount of R 2 232
020.00 less 80% apportionment.  This
is bolstered by the
actuarial certificate from Ivan Kramer CC who calculated the
plaintiff’s pre-morbid position as R771 531
and R 1 870 666.00
post-morbid position. A contingency deduction of 5% for
past loss and 15% for future loss
of income was applied.
[8] In calculation
of the loss of earnings, the actuary relied on the report of Ms
Chista Du Toit, an Industrial and Counselling Psychologist
who
examined the plaintiff on 17 April 2018.
[9] Ms Du Toit
states the following in her report.
But
for the accident
.
[10] At the time of
the accident Mr. Craffert operated a scrap metal business. He
reportedly generated a profit of R70 000.00(Seventy
Thousand
Rands Only) per month and R840 000 per annum and a calculation
was done on the basis of his reported but unsubstantiated
income.
[11] On 27 October
2021 two days before the trial date Ms. Du Toit amended her report
due to the unavailability of proof of income
allegedly derived from
the business. In her amended report Ms Du Toit has provided an
alternative scenario that must be used in calculating
the loss of
income. She states the following:
11.1
“in the absence of availability of financial information regarding
Frame Scrapmetal CC and should Mr. Craffert, for whatever
reasons,
have taken the decision to enter the labour market in an employed
capacity, this would probably have been as a semi-skilled
worker. For
quantification purposes and as a guideline, noting Mr. Craffert’s
age of 36 years at the time of the accident, matric
qualification and
experience as a business owner, earning capacity in the open labour
market somewhere around
age
40 years, is projected on approximately the average between the
median and upper level of semi-skilled workers per Robert Koch
(R140,500.00 per annum). Inflation-based increases would be
applicable. In this regard, general
-
earning
scenarios for semi-skilled workers with a matric qualifications and
relevant experience in the open labour market refers.
Applicable
contingencies
can
be applied to accommodate uncertainties regarding availability of
work / remuneration.”
Having regard to
the accident
[12] Having
considered various experts referred to in her report Ms Du Toit
concluded as follows regarding the plaintiff’s employability:
-
12.1
“Mr Craffert’s occupational functioning has been considerably
compromised by the sequelae of the injuries he sustained in
the
accident. The combination of his physical-, cognitive-communication
profile-, cognitive-and psychiatric limitations have negatively
affected his employability. It can be concluded that the accident has
negatively affected Mr Craffert’s ability to work in a similar
way
as pre-accident. He is an unequal competitor in the open labour
market. Acknowledging Mr. Craffert's present age (40 years) and
work
history, having only ever worked in a self-employed capacity,
performing physically demanding work as well as his limitations
and
prognosis, as elucidated by the various experts, it is considered
unlikely that he will be able to generate any meaningful
income
.
He is consequently rendered unemployable for the rest of his life. A
total loss of work- and earning capacity will then be indicated.
[13] Ms Du Toit
referred to the following experts
13.1
Dr Read, Orthopaedic Surgeon
13.2
Dr Read an Orthopaedic Surgeon records the plaintiff
’
s
injuries as follows: -
13.2.1
Mr. Craffert sustained severe injuries involving the left distal
femur and the left proximal tibia. He has had more than forty
surgical procedures performed on the left lower limb. The last
surgical procedure was by way of a total knee replacement in
November 2017.
13.2.2
An MRI showed that he sustained a fracture of the antero-medial
aspect of the
left
medial femoral condyle and the postero-lateral aspect of the left
lateral tibial
plateau.
13.2.3
There
was
complete
rupture
of the anterior and posterior cruciate     ligaments
and
-
rupture
of the tibial collateral ligament.
13.2.4
There was also a fracture of the left fibula with rupture of most of
the postero-lateral corner ligaments and tendons.
13.2.5
Mr. Craffert has had recurrent bouts of infection in the left lower
limb.
13.2.6
He has a constrained knee. The left patella is destroyed. He has a
varus deformity in the left lower limb with a significant
limb length
discrepancy, measuring 5cm.
[14] At the time of
assessment, Mr. Craffert informed Dr Read that he has been infection
free for the past six months. However, he
is still at risk of
developing infection in his left -lower limb. Osteomyelitis is an
extremely difficult condition to treat and
control. There is every
chance that he may well end up with an above knee amputation.
[15] He will require
conservative treatment. Dr Read also noted soft tissue injuries to
the cervical- and lumbar spine, multiple right-sided
rib fractures, a
comminuted fracture at the base of the left third metatarsal and an
oblique fracture of the right scapula. No abnormalities
were noted in
this regard, other than occasional symptoms in the axial skeleton
that is aggravated by strenuous
activities  and pain over the right side of the chest wall
following the rib fractures.
[16] Dr Read is of
the view that should Mr. Craffert find suitable employment  -
in the future; it would have to be of
a purely sedentary nature with
light manual  duties only. However, he has only ever been
technically trained. It may be difficult
if    not
impossible for him to find suitable employment in the future.
[17]
Kerryn Kelly
,
Occupational Therapist’s opinion is that Mr. Craffert should be
suited
to work with the following
characteristics:
17.1
Limited to work of sedentary to light physical capacity only.
17.2 Prolonged,
repetitive movements involving the left lower limb should be limited
17.3 Walking should
be limited to occasionally and over a level non-slip surface. He
should not be required to walk at a fast pace.
17.4 Stooping and
kneeling should be limited to occasionally (up to 1/3rd of the day).
17.5 Squatting,
standing, climbing stairs or climbing a step ladder should be
limited
to rarely (up to 5% of the day).
17.6
Crouching should be avoided.
17.7
Work should not involve operating pedals with the left lower limb.
17.8 Standing and
walking should be alternated throughout the working day  and
allow for periods of working in a seated position.
17.9
Rest breaks and postural changes are recommended.
[18]
When
considering
his
educational
background and work history, Mr.
Craffert has
always
relied on his physical skills and abilities to secure work. Due to
his physical limitations as a result of the accident in
question it
can be argued that
-
he
will struggle severely to find alternative employment that will meet
the physical requirements as set out in the report.
[19]
Should he undergo a left leg amputation as possibly indicated by the
Orthopaedic Surgeon his ability to find employment would
be even more
difficult in the future. His level of productivity will be further
affected due to extra time it   may take
him to access
facilities such as the bathroom and to move around his   -workspace.
[20] Ms. Kerry is
therefore of the view that owing to the injuries sustained, Mr.
Craffert is now unable to fairly compete with his
able- bodied peers
in the open labour market. His injuries have therefore compromised
his employability and he is now at a significant
disadvantage with
regards to his competitiveness in the open labour market.
[21] Ivan Kramer CC
– The actuarial certificate of value shows the following values per
value. The certificate based on alternative
calculations.
[22] The
plaintiff applied contingency values between 5% and 15% in respect of
pre-morbid position and 0% on post morbid.
Past Medical
Expenses
[23] In terms of
invoices and schedules filed, the past medical expenses amount to R
2 650 001.76. Furthermore, an affidavit
of an official from
Discovery Medical Clinic confirmed the amount as the amount paid by
the medical aid.
[24] The plaintiff
seeks an amount of R 530 000.35 which is 20% of the expense
The Legal
Principles
[25]
The legal principle in respect of a claim for diminished earning
capacity is trite in that the Plaintiff must be placed in the
position he would have been in had the injuries not occurred. To
succeed in the claim for loss of income or earning capacity, the
Plaintiff has to establish on a balance of probability that as a
result of the accident, he has lost future earning capacity
[1]
.
25.1
On the claim for loss of earnings Gough
[2]
states:
‘
If one were
to regard the loss as one of future earnings one may ask the question
“what income will the plaintiff actually lose
as a result of the
defendant’s wrongful act?’.
[26]
Lowe J dealt with this issue recently in Angelique Prince v RAF
[3]
quoting Corbett, he said the following:
26.1
Again as pointed out by Corbett
[4]
:
“
Before
damages payable to the injured person can be assessed, it is
necessary that the court should determine factually what injuries
were suffered by the plaintiff as a result of the defendant’s
wrongful act...”
[27] In this regard,
the question that must first be answered in the assessment of damages
is and what must be determined is:
“…
disability
which is likely to impair the injured person’s earning capacity or
to cause a loss of the amenities of life.  Such
disability may
be temporary or permanent.  Where it is temporary and has in
fact disappeared at the time of trial, it is not
normally of great
importance as an independent factor.… On the other hand, where it
is permanent or where, though temporary, it
extends beyond the time
of the trial, then it may cause prospective losses, such as a
diminution in the injured persons earning capacity
or an impairment
of the amenities of life, for which compensation should be made by
the award of damages.  Moreover, a permanent
disability may be
present at the time of the trial or it may be one which will only
manifest itself at some future date.”
Discussion
[28] This matter
like almost all the RAF matters is not defended. In determining
whether the plaintiff has proven on a balance of
probabilities that
he has lost the earnings I should examine the evidence before me. The
defendant did not file any expert report.
.
[29] The plaintiff
relies on the evidence of expert witnesses.
[30]
In
RAF v Kerridge
[5]
Nicholls
J
said
the following on the role of the experts.
‘
The
role of experts in matters such as these and the opinions they
provide can only be as reliable as the facts on which they rely
for
this information. Too readily, our courts tend to accept the
assumptions and figures provided by expert witnesses in personal
injury matters without demure. The facts upon which the experts rely
can only be determined by the judicial officer concerned. An
expert
cannot usurp the function of the judicial officer who is not
permitted to abdicate this responsibility – the court should
actively evaluate the evidence. Ideally, expert evidence should be
independent and should be presented for the benefit of the court.
It
is not the function of an expert witness to advocate the client’s
cause and attempt to get the maximum payout, as most seem
to believe.
This problem is exacerbated by the Road Accident Fund (the Fund)
which fails to properly investigate the true situation
of a claimant
and is content to rely on projections and assumptions of experts with
no factual basis.’ (Footnotes omitted).
[31] The plaintiff’s
injuries are common cause. At the time of accident, he was
self-employed managing his scrap yard. He employed
one laborer,
paying him R150 per day.
[32] His job
included driving around 100km per day collecting pieces of metal,
loading it on a bakkie and returning to his workshop,
where he would
strip the metal out using scanners and cutting torches.
[33] After the
accident he was unable to return to his business due to the
seriousness of his injuries. He can only do the job that
is of purely
sedentary nature with light manual duties. It may be difficult for
him to find suitable employment in future regard
being had to his
education qualification and age. He has a matric certificate. Due to
the injuries, he sustained he will not be fairly
competing with his
able-bodied peers in the market.
[34] There is no
evidence to rebut the plaintiff’s case. If regard is had to the
plaintiff’s injuries and treatment he received,
I am convinced that
the plaintiff has proven on a balance of probabilities that he has
lost earning capacity. However, there is no
evidence that the
plaintiff will not be able to work until the age of 65 years.
Kerry Kelly, Occupational Therapist is of the
opinion that has
retained the cognitive capacity to continue running his own business
and to perform the managerial side of the business.
She opines that
he would have to employ additional assistance to complete the
physical task.
[35]
In
Southern
Insurance Association v Bailie
[6]
Nicholas
JA
at
113 F – 114A
stated as follows:
‘Any enquiry into damages for loss of earning capacity is of its
nature speculative, because it involves a prediction
as to the
future, without the benefit of crystal balls, soothsayers, augurs or
oracles. All that the court can do is to make an estimate,
which is
often a very rough estimate, of the present value of the loss. It has
open to it two possible approaches. One is for the
Judge to make a
round estimate of an amount which seems to him to be fair and
reasonable. That is entirely a matter of guesswork,
a blind plunge
into the unknown. The other is to try to make an assessment, by way
of mathematical calculations, on the basis of
assumptions resting on
the evidence. The validity of this approach depends of course upon
the soundness of the assumptions, and these
may vary from the
strongly probable to the speculative.
It is manifest that
either approach involves guesswork to a greater or lesser extent. But
the Court cannot for this reason adopt a
non possumus attitude and
make no award…’.
[36] Contingency is
a matter that is left at the discretion of the court. Based on the
individual circumstances of each claimant,
contingencies are there to
cater for future unforeseen circumstances, which might render the
plaintiff unable to perform as per his
pre morbid potential or limit
his performance, taking into account the reports by the experts in
particular. The plaintiff, will
have to exert more effort to cope and
be able to perform on par with his colleagues. In this regard a
general contingency of 10%
and 25% is fair in the circumstance.
[37] Based on the
alternative scenario, the following calculation has been performed:
Values below are in
Rands
but for the
having regard to
net loss
accident
the accident
Gross accrued value
of income
771 531.00
0
Less contingency
10%
77
153.10
0
0
Net accrued value of
income
694 377.90
694 377.90
Gross prospective
value of income
1 870 666.00
0
Less contingency
25%
467 666.50
0
0
Net prospective
value of income
1 402 999.50
0
1 402 999.56
Total value of
income
2 097
377.40
0
2 097 377.40
Contingency %
Accrued
10%
Prospective
25%
Less
80%
419 475.48
[38]
In the result, I make the following order:
1.
After an 80%
apportionment the Defendant shall pay to the Plaintiff a capital
amount of R1 129 475.83 (one million one hundred
and
twenty-nine thousand four hundred and seventy-five eighty-three
cents) of which;
a.
R419 475.48 is in
respect of Loss of earnings
b.
R530 000.35 is in
respect of Past hospital and medical expenses.
c.
R180 000.00 is in
respect of General Damages
2.
Together with interest
a tempore mora calculated in accordance with the prescribed rate of
interest Act 55 of 1975, read with
section 17(3)(a)
of the
Road
Accident Fund Act 56 of 1996
which interest shall start to run 14
days from date of delivery of judgment.
3.
Payment will be made
directly to the trust account of the Plaintiff’s attorneys within a
hundred and eighty (180) days from the
granting of this order:
Provided that interest shall start running on the capital amount
within 14 days of granting this order.
HOLDER
De Broglio
Attorneys Inc
ACCOUNT NUMBER
[….]
BANK & BRANCH
Nedbank, northern
Gauteng
CODE
198 765
REF
c527
4.
The Defendant is
ordered in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56
of 1996
to reimburse 20% of the Plaintiff’s costs of any future
accommodation of the plaintiff in a hospital or nursing home, or
treatment
or rendering of service to him or supplying goods to him
arising out of injuries sustained by plaintiff in a motor vehicle
accident
on which the cause of action is based, after such costs have
been incurred and upon proof thereof.
5.
The Defendant is
to pay the Plaintiff’s agreed or taxed High Court costs as between
party and party, such costs to include the preparation
and qualifying
and reservation fees of the experts, consequent upon obtaining
Plaintiff’s reports, the Plaintiff’s reasonable
travel and
accommodation costs to attend the Defendant’s and own experts, the
costs of all the Plaintiff’s expert report, addendum
reports, and
confirmatory affidavits and costs of counsel. All past reserved
costs, if any, are hereby declared costs in the cause.
6.
The Plaintiff shall, in
the event that the costs are not agreed:
6.1 serve the Notice
of Taxation on the Defendant’s; and
6.2 allow the
Defendant fourteen (14) days to make payment of the taxed costs.
7.
There is a valid
contingency fee agreement in existence between the Plaintiff and her
Attorneys.
FLATELA
L
ACTING JUDGE OF
THE HIGH COURT
This Judgment was
handed down electronically by circulation to the parties’ and or
parties’ representatives by email and by being
uploaded to
CaseLines. The date and time for the hand down is deemed to be 10h00
on 8 February 2021.
Date of
Hearing:
29 October 2021
Date of Judgment:
8
February 2021
Plaintiff’s’
Counsel:           Adv
Justine Erasmus
Instructed
by:
De Broglio Attorneys Inc.
Defendant’ ’s
Counsel:      Not represented
[1]
Rudman
v RAF 2003 (SA)234 (SCA)
[2]
Gough
“The Lost years” The claim for loss of earnings ‘(1983) De
Rebus 486
[3]
(CA
143/2017) [2018] ZAECGHC 20
[4]
Quantum
of Damages, Volume 1: Corbett Fourth Edition, Gauntlett at p 30.
[5]
2018]
ZASCA 151
[6]
1984
(1) SA 98
(A)