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[2021] ZAGPPHC 308
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Mabasa v Road Accident Fund (56846/17) [2021] ZAGPPHC 308 (13 May 2021)
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: 56846/17
DATE:
13 May 2021
WINNERS LYMSON
MABASA
Plaintiff
V
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
MABUSE
J
[1]
This is a claim for payment of money. The claim arises from a
motor vehicle
accident that took place on or about 27 November 2016
and at or near corner Burtekant Street and WF Nkomo Street, involving
motor
vehicles bearing registration numbers and letters […]
and […]. At the material time of the said collision, the
Plaintiff was a passenger in motor vehicle [….].
[2]
The said collision was caused by the exclusive negligence of the
drivers of motor
vehicles.
[3]
According to the Plaintiff’s particulars of claim (“POC”),
following
the said motor vehicle collision, the Plaintiff suffered
the following damages and injuries:
3.1
future medical expenses;
3.2
loss of earning capacity; and
3.3
general damages.
[4]
As a consequence of the said injuries the Plaintiff suffered the
following: loss
of future medical expenses R100,000.00; loss of
earning capacity R90,000.00; general damages R400,000.00.
[5]
Following the said collision on 29 January 2020 the Plaintiff
commenced litigation
by issuing summons against the Defendant in
which it claimed the relief set out in paragraph [1]
supra
.
[6]
The matter came before the court on 15 February 2021. It was
stood down several
times to enable the parties to reach settlement
and once to enable counsel for the Plaintiff to consider the
Plaintiff’s
position with regard to the actuarial report by
Munro Forensic Actuaries. I will come back to this report
later.
[7]
Counsel for the Plaintiff was Adv Mametse. On 3 March 2021 before I
reserved judgment
in the matter, I asked him if he stood by the
actuarial report. He responded positively. I also asked
him if he had
anything further to say upon which he asked for an
adjournment in order to consider his brief. On resumption he
asked for
an order in accordance with the terms of his draft order.
This draft order includes, among others, reasonable costs for
attending
medico-legal assessments of obtaining the reports and their
preparation. The expert reports uploaded on Caselines were from
Dr P Kumbirai, the orthopaedic surgeon, who also completed the RAF4;
Dr JA Ntimbane, neuro-surgeon who also completed the RAF4;
Dr
Shibambo, occupational therapist; Mr Oscar Sechudi, industrial
psychologist; Munro Forensic Actuaries as I referred to them
above.
As I already have pointed out there was no appearance for the
Defendant on 15 February 2021 when the matter
commenced. Adv
Mametse informed the Court that the Defendant is aware of the date of
hearing.
[8]
The Defendant had resisted the Plaintiff’s claim. For
that purpose, the
then Defendant’s attorneys had delivered both
a special plea and a plea on the merits of the claim. In the
special
plea the Defendant had asked for the dismissal of the
Plaintiff’s claim by reason of the fact that the Plaintiff had
failed
to comply with the provisions of Regulation 3(3). The
Defendant contended for that reason this Court had no jurisdiction to
make a finding on whether or not the Plaintiff’s injury was
serious nor to make a finding regarding whether the Plaintiff
was
entitled to claim non-pecuniary loss against the Defendant. In
the main plea, the Defendant still contested the Plaintiff’s
claim and asked that it be dismissed with costs, in the alternative
that the Plaintiff’s claim be subjected to s 2 of the
Apportionment of Damages Act 34 of 1956.
[9]
In terms of the pre-trial minutes of 10 February 2020, the Defendant
had conceded
the merits of the Plaintiff’s claim. The
recording in the said pre-trial minutes states that:
“
3.1
The Defendant records that merits had been conceded already directly
from the RAF.”
Another recording
states as follows:
“
State
whether the matter is ready to proceed on the merits only or merits
and quantum or quantum or only. On this question
the answer was
only quantum.”
A matter can
proceed on quantum only if the issues regarding the merits have been
sorted out between the parties. Once the
merits have been
settled by the Defendant conceding same, the need to lead evidence on
the merits falls by the wayside. In
this case no evidence on
the merits was led. I must point out that there was no appearance by
the Defendant at any hearing of the
matter. So, the only issue
that the Court had to determine was quantum with regard to the
general damages and loss of earning
capacity.
[10] The
claim for loss of earning capacity must be considered in the light of
the summons or to be
specific, in the light of what was claimed in
the summons and the amendment of the claims. Rule 18(4) of the
uniform rules
of court states that:
“
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader (in this case the Plaintiffs)
relies for
the claim, defence or answer to any pleading, as the case may be,
with sufficient particularity to enable the opposite
party to reply
thereto.”
In my view, the
Plaintiff has, in his combined summons, satisfied the requirements of
this sub-rule. For that reason, it is
evident that the
Plaintiff claims for:
10.1 future medical
expenses;
10.2 loss of earning
capacity; and
10.3
general damages.
[11]
It is the duty of the attorney who consults from the beginning with
the client to glean the essential
facts which gave rise to the
client’s decision to consult with the attorney. A few
short questions concerning the circumstances
under which the accident
took place will normally enable the attorney to advise the client
whether these particular circumstances
qualify for a claim under the
Road Accident Fund Act. It is therefore the duty of the
attorney to properly formulate the
claim. In the course of
time, the attorney may find it necessary to amend the claim against
the Fund. An amendment
of a claim may be necessitated by the
expert report. The attorney may want to bring an amendment to
the claim in order to
bring it in line with the expert report.
A claim may be amended at any time before judgment.
[12]
As indicated above, one of the Plaintiff’s claims is for loss
of earning capacity.
This is an independent and self-standing
claim on its own. A person’s bodily injury may be so
severe that he is either
temporarily or permanently prevented by the
injuries he sustained during the accident from earning a salary he
earned and prior
to the said accident. This will result in
damages he suffered due to loss of his capacity to earn in future.
In terms
of
Hawker v Life Offices
1987
(3) SA 777
C
a person’s earning
capacity is a recognised subjective right consisting of personality
and monetary elements. An accident
that results in the injuries
to a person which is so severe as to either temporarily or
permanently prevent such a person from
earning what he earned before
the accident is regarded as an unlawful interference with the right
to earn a living. If that
is the case it was imperative for the
Plaintiff to recover such a future loss from the Defendant in the
claim.
PRINCIPLES OF
ASSESSMENT
[13]
There is a basis for the assessment of loss of earning capacity (in
other words the income of
the claimant prior to the accident) it is
possible mathematically to assess the loss of earning capacity.
Pure mathematical
assessment of such damages is not acceptable to the
Courts due to the fact that such mathematical calculations will limit
the Court’s
inherent jurisdiction to assess damages. In
this regard see
Hulley v Cox
1923 AD 234
and Gravits v Mutual & Federal
[1993] ZASCA 121
;
1994 (1) SA 535
(A)
.
[14]
According to the Law of Third Party Compensation 2
nd
Edition by HA Klopper, there are two approaches that are employed
when assessing damages based on loss of earning capacity.
The
first approach is a reasonable and fair amount based on the proven
facts and the proven circumstances. See
Union Government v
(Minister of REH
1930 AD 385
and Hulley v Cox)
1923 AD 234
.
In
Goldie v City Council of Johannesburg
1948 (3) SA 913
(W) at
920
, Ettlinger AJ, the Court had the following to say:
“
Mr Hart,
who argued the case for the Defendant, quoted a number of cases such
as Union Government (Minister of REH) v Clay
(1913 AD 385)
Hulley v
Cox
(1923 AD 234)
and Craig v Franks (1936 SR 41) in support of the
proposition that it is wrong to calculate the amounts to be awarded
under these
heads of damage on the basis of an annuity, and that
where such an actuarial calculation affords useful guidance, the true
basis
is what the court considers, under the circumstances of the
case, to be a fair and reasonable amount to be awarded the Plaintiff
as compensation. This may be so, but in the case where it is
necessary to award compensation for loss of future earnings,
I have
difficulty in appreciating what better starting point there can be
than the present value of the future income which the
Plaintiff has
been prevented from earning. From this point proper allowance
must be made for various contingencies, but if
the fundamental
principle of an award of damages under the Lex Aquilia is
compensation for patrimonial loss, then it seems to me
that one must
try to ascertain the value of what was lost on some logical basis and
not on impulse or by guesswork.”
This approach was
adopted by Hennogsberg J in
Gillbanks v
Sigournay
1959 (2) SA 11
(N)
.
This is the case in which the Court stated that:
“
As I
appreciate the law on this aspect of the case, the court is not
required to give an absolutely perfect compensation.
Exact
mathematical calculation is impossible. A computation upon an
annuity basis affords some guide, but ought not to be
considered as a
perfect guide and other circumstances must be given due weight.
In this connection I do not think that I
can do better than apply the
same principle as was applied in the court a quo in The New Indian
Assurance Co Ltd v Naidoo supra.
That principle, as appears in
the abovementioned judgment, is that when one is asked to assess a
claim based upon estimated loss
of future earnings one is really
required to arrive at such a sum presently payable as will give to
plaintiff a periodic payment:
and the figure arrived at should
be such that at the end of the period there would be no capital sum
left.”
[15]
There is an English case of
Fletcher v
Autocar and Transporters Ltd
(1968) 1 ALL ER 726
(CA) at 739C to 741E
in which the actuarial of assessment of damages in respect of future
loss of earning capacity was rejected. The Appellate
Division
has however now declined to follow this approach in these terms “
the
second attack on the short judgment of the trial court was that an
actuarial computation was inappropriate in the present case
for the
reason that it was based on assumptions and hypothesis so
speculative, so conjectural, that it did not afford any sound
guide
to the damages which should be awarded.
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, sooth-sayers, 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 and 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 assumptions, and
these may vary from 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, in case there the court has
before it material on which an actuarial calculation
can usefully be
made. I do not think that the first approach offers any
advantage over the second. On the contrary
when the result of
an actuarial calculation may be no more than an “informed
guess”, it has the advantage of an attempt
to ascertain the
value of what was lost on a logical basis;
whereas
the trial Judge’s “gut feeling” (dealing with the
words of appellant’s counsel) as to what is fair
and reasonable
is nothing more than a blind guess.”
[16] A
trial judge retains nonetheless a large discretion to award what
under the circumstances he
considers right. He may be guided
but he is certainly not tied down by inexorable actuarial
calculations. See in this
regard
Legal Insurance Co Ltd v
Botes
1963 (1) SA 608
A at 614 E-G
. In this judgment the
Court had the following to say:
“
The
remedy relates to material loss “caused to the dependants of
the deceased man by his death”. It aims at placing
them
in as good a position, as regards to maintenance, as they would have
been in if the deceased had not been killed. To
this end,
material losses as well as benefits and prospects must be
considered. The remedy has been described as anomalous,
perculiar, sui generis - but it is effective. In assessing the
compensation the trial Judge has a large discretion to award
what
under the circumstances he considers right. He may be guided
but is certainly not tied down by inexorable actuarial
calculations.
In its present form, robust and practical, the remedy illustrates the
growth and flexibility of a city of law,
basically Roman-Dutch, which
we have as heritage in this country.”
CALCULATION
[17]
Where the Plaintiff suffers a permanent impairment of his earning
capacity the following is a
proper and effective method of assessing
loss of his earnings in the majority of cases:
17.1 calculate the
present value of the future income which the Plaintiff would have
earned but for his injuries
and consequent disability;
17.2 calculate the
present value of the Plaintiff’s estimated future income if
any, having regard to his
disability;
17.3 subtract the
figure obtained under (2) from that obtained under (1); and
17.4
adjust the figure obtained as a result of this subtraction in the
light of all relevant factors and contingencies.
FUTURE
MEDICAL EXPENSES
[18]
The Plaintiff’s claim for future medical expenses will be
covered by the Defendant issuing
a certificate in terms of s 17(4) of
the Road Accident Fund Act. This certificate will cover all the
Plaintiff’s future
medical expenses.
[19] At
the outset, I must make it very clear that although the Plaintiff has
filed several expert
reports, no-one of such experts testified or
tendered any evidence despite the Plaintiff’s attorneys having
delivered notices
in terms of Rule 36(9)(b) in respect of each such
expert. No affidavit has been tendered in respect of each expert’s
evidence.
It is not enough simply
to
file the expert reports and a notice in terms of Rule 36(9)(b).
It is important that an expert should testify. If
they are
unable to attend Court in order to testify, their affidavits can be
obtained and placed before court. In their affidavits
they will
confirm the contents of their report.
[20] It
is important that the Court should be persuaded that a witness is
competent to testify as
an expert on the subject considered.
This is normally done by questioning the witness himself. In
this way the Court
will learn about the witness’ qualifications
and experience. Failure to do so may result in a finding by the
Court
that the experts’ evidence remains mere opinion and thus,
irrelevant. See in this regard
Mkhize v Lourens &
Another
2003 (3) SA 292
T
. In this judgment the Court found
that the Rule 36(9)(a) and (b) notices and summary of the evidence to
be given by the expert
at a trial have no evidential value, and,
accordingly, could not cure the defect of failure by the expert to
testify. The
judgment continues further at 292 G-H and state
that:
“
The Court
still had to be satisfied that the witness did, indeed, possess
expert and specialised knowledge which the Court did not
possess or
of which it could take judicial cognisance. Failure to place
the expert qualifications and alleged expert knowledge
before Court
was a fatal flaw.”
Mr Mametse did not
tell the Court that the Defendant had consented to the expert reports
being handed in. They were therefore
not admitted by the
Defendant. In the circumstances the expert reports remain mere
opinion and are irrelevant.
LOSS OF
EARNING CAPACITY
[21]
The second claim that the Plaintiff has put against the Defendant is
loss of earning capacity.
This issue must be considered in the
context of the summons. Firstly, apart from alleging it, there
is no support for this
claim in the particulars of claim nor is there
any evidence to support it. The Plaintiff has furnished no
basic reasons why
he claims for loss of earning capacity against the
Defendant.
[22]
Now in this case the Plaintiff has not testified. It is
therefore unknown to this Court
whether the Plaintiff sustained
temporary or permanent injuries. A projection of the
Plaintiff’s salary into the future
is only possible if there is
evidence of a permanent loss of earning capacity. In the
absence of such evidence a claim for
loss of earning capacity is not
possible. The onus rests on the Plaintiff to prove that he has
sustained physical injuries;
that his injuries are so severe that he
is permanently prevented by the injuries he sustained from earning a
salary; he must prove
that the injuries resulted to damages he
suffered due to loss of his capacity to earn in future. In
order to show a permanent
loss of earning capacity, see in this
regard
Commercial Union Assurance v
Stanley
1973 (1) SA 699
(A)
, the
claimant must be able to prove that he has no reasonable prospects of
recovery.
[23]
In casu,
there is no evidence of change in personality; brain deterioration;
loss of enjoyment of life; loss of his work; there is no evidence
that he can no longer do the kind of work he was doing before the
collision. No evidence of any change in his earnings.
There is no evidence that the employer contemplates reducing the
Plaintiff’s earnings as a result of his injuries.
[24]
It must be pointed out that a claim for loss of earning capacity is
not the same as a claim for
loss of earnings or income. For
loss of income arises in a situation or in the event of a claimant
suffering loss of legal
income as a result of his bodily injuries due
to the absence of his employment or business or profession.
Such a financial
loss can be recovered. See
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD 194
.
[25]
In respect of a claim for loss of earnings, it should be established
from the employee whether
there was any absence from work as a result
of the injuries he sustained in the collision and if so, for what
period. A claim
for loss of earnings should, like a claim in
respect of hospital and medical expenses, be properly vouched.
Documentary substantiation
of a claim in respect of the loss of
earnings is necessary. See
Van der
Heuwel v SA National Trust Assurance Co Ltd 1950 Corbett and Buchanan
447 (C)
.
[26]
On the other hand, injuries sustained by the claimant may have
impaired his future ability to
earn a living. This may either
be temporarily or permanently. In such a case the claimant is
entitled to claim damages
for the future loss of earnings more
accurately stated for his reduced earning capacity or for the period
of the impairment.
[27]
In my view, the Plaintiff has not proved any loss of earning
capacity. The actuary’s
report by Munro Forensic
Actuaries does not help the Plaintiff’s cause. This is so
because the actuaries were instructed
“to estimate the capital
value of the potential loss of earnings suffered by the claimant”
and not the capital value
of potential loss of earning capacity.
GENERAL
DAMAGES
[28] In
this regard I was referred by counsel to the following:
“
Nithiananthan
& Another v Auto Protection Assurance 1963(1) QOD 172D (2020
Quantum Year Book) in which an amount of R960 000.00
was
awarded.”
In this case the Plaintiff had
suffered injury to the brain, fracture of the femur, minor cuts and
abrasions which resulted in loss
of intellectual and physical
condition, temporary pain but no
permanent disability. He was
treated for laceration of the forehead, a right arm fracture, left
chest injury. He was
admitted at the hospital for 5 days.
He used over-the-counter medication. The Plaintiff had no
headache nor did he
have an epilepsy.
[20.2]
Farber v Calidonian Insurance 1952 (1) CEB 347 Quantum Year Book
Value
. In this matter the
Plaintiff sustained a fracture of both bones of the left forearm,
torn ligaments at the back of the neck,
bruising of right thigh and
forehead metal plate inserted and tender over screws and permanent
scar. The Plaintiff in that
matter was awarded R195,000.00 in
1952.
[20.3]
Blyth v Van der Heever 1979 (3) CEB 2020 Quantum Year Book Value are
792,000
. In this matter the
Plaintiff sustained a fracture of radius and ulna of the right
forearm which resulted in sepsis, limited
functional capacity,
ensuring insertion of a metal plate. The Court awarded him then
R732,000.00.
[20.4]
Sauerman v Road Accident Fund 2004 (5) QCEB B4-190 (2021) Quantum
year book value for R483,000
.
The
Plaintiff had sustained a head injury, whiplash to injury to neck
which resulted in concussive syndrome which became irreversible,
failure to cope with demands of daily living and work, poor attention
and memory, irritability, headaches, dizziness, fatigue and
anxiety.
The Court awarded him R483,000.
[29]
In this matter I have had regards to what appears in paragraph 15 of
this judgment. I am
of the view that an amount of R400,000.00
is in my view a fair and reasonable compensation for the general
damages.
[30] In
the result, I make the following order:
1.
The Defendant is hereby ordered to furnish the Plaintiff within 21
days of this
order with a certificate in terms of
s17(4)
of the
Road
Accident Fund Act 56 of 1996
.
2.
The Plaintiff’s claim for loss of earning capacity is hereby
dismissed.
3.
The Plaintiff’s claim for general damages succeeds and it is
ordered that
the Defendant should pay the Plaintiff a sum of
R400,000.00 in respect of general damages.
4.
The Defendant is hereby ordered to pay the costs of this suit.
PM MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel for the
Plaintiff:
Adv AM Mametse
Instructed
by:
Ndhima Attorneys
Counsel for the Defendant:
No appearance
Instructed
by:
Mkhonto and Ngwenya Inc.
Date on the trial roll before Mabuse
J:
15 February 2021; 17 February 2021; 19 February 2021; 3 March 2021
Date of the judgment:
13 May 2021