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[2021] ZAGPJHC 139
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Makwakwa v The Road Accident Fund (6756/21019) [2021] ZAGPJHC 139 (26 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER: 6756/21019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE:
26/7/21
In
the matter between: -
MAKWAKWA,
GIVEN
JAPHTA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
DELIVERED
:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by e mail and publication
on CaseLines. The date
and time for hand-down is deemed to be 14h00 on 26 July 2021.
F.
BEZUIDENHOUT AJ:
INTRODUCTION
[1]
The plaintiff instituted a claim
against the defendant for damages suffered as a result of injuries
sustained by the plaintiff due
to a single motor vehicle collision
that occurred on 1 July 2016. At the time of the collision, the
plaintiff was a passenger in
the motor vehicle.
[2]
The defendant defended the action
and pleadings were exchanged. The matter became trial ready and was
enrolled for hearing on 8
March 2021.
[3]
In view of the dispute that arose
between the defendant and certain firms of attorneys that served on
the defendant's panel, the
attorneys instructed by the defendant
received no further instructions on trial and apparently withdrew as
attorneys of record
for the defendant.
[4]
The defendant consequently was
directly involved in the finalisation of this action. When the matter
was allocated to me for adjudication
on 8 March 2021, there was no
representation on behalf of the defendant. The matter stood down for
the defendant to appear. At
11h30, Senior Claims Handler, Ms Portia
Zungu, appeared for the Defendant. Ms Zungu informed that court the
claims handler who
had been dealing with the matter was off sick. Ms
Zungu undertook to assess the matter and revert at 12h30. The matter
stood down
further for this purpose.
[5]
When the court resumed at 12h30, Ms
Zungu was replaced by Ms Lesego Moruane who advised that an offer had
been made. Counsel for
the plaintiff, Mr Luvuno advised that the
offer was rejected and that that plaintiff wished to continue with
the trial.
[6]
The
court was informed that the issue of liability had been conceded by
the defendant. In addition, a section 17(4)(a)
[1]
undertaking for future medical treatment had been furnished by the
defendant. Therefore, the only issue for determination ad
quantification
was the plaintiff’s loss of earnings. The matter
was stood down to 9 March 2021 to enable the parties to make oral
submissions
in a virtual hearing held
via
the MS Teams platform.
PLAINTIFF’S
SUBMISSIONS
[7]
The plaintiff is a 30-year old single male. He was employed as a
waiter during
the time of the collision. He did not resume his
pre-morbid employment post-injury. His contract of employment was
terminated in
September 2016. The plaintiff’s former
employer paid over and above all his sick leave entitlement.
[8]
Thereafter, during January 2017, the plaintiff procured
employment at Andiccio
Pizza Restaurant in Grayston Road, Sandton,
and was transferred to the Illovo branch during June 2019
because the restaurant
was less busy.
[9]
The plaintiff completed matric and in 2014 enrolled at City Varsity
College
for a short certificate programme in television and video
production, but discontinued his studies after the accident. The
plaintiff’s
certificate of employment reveals that he earns
R3,600.00 per month.
[10]
As a result of the accident, the plaintiff sustained the following
injuries: -
[a]
Fracture to the left humerus;
[b]
Lacerations to the right wrist.
[11]
Following the motor vehicle accident, the plaintiff was taken by
ambulance to Chris Hani Baragwanath
Hospital where he was admitted on
the 2
nd
of July 2016 and discharged on the
13
th
of July 2016. On his arrival, the plaintiff
was given pain medication and X-rays were conducted which revealed
that he
had sustained a left humerus fracture. A U slab was
applied to his left upper limb. Further treatment included an open
reduction
and internal fixation of his left humerus and glass shards
lodged into his right wrist were removed. The plaintiff received
specialist
treatment from a physiotherapist and he was issued with a
left arm sling to support his left arm. Pursuant to his discharge
from
hospital, the plaintiff was referred for outpatient
consultations at Rob Ferreira Hospital, which he attended twice a
month for
the period of six months in consultation with a
physiotherapist.
[12]
According to the plaintiff, he had never suffered from any serious
illness or sustained any serious
injuries that warranted hospital
admission prior to the accident.
[13]
According to the medico-legal report compiled by orthopaedic surgeon,
Dr R S Ngobeni,
dated the 5
th
of
August 2019: -
“
[The plaintiff]
reports left arm weakness; he is unable to carry 20 kg. He is
very sensitive on the arm. He experiences pain in cold weather
on the
left arm. Right wrist pain in certain positions.
Medical expenses
:
Future surgical treatment: Provision for surgical treatment in the
form: removal of left proximal humerus plate. Left shoulder
replacement at the later stage at R250,000.00.
Opinion
:
He was treated surgically with plate and screws. Currently complains
of left shoulder weakness and pain with inclement weather.
On
clinical examination he has restricted abduction and forward flexion.
The X-ray shows plate and screws with disruption of the
neck shaft
angle. The claimant is prone to develop avascular necrosis of the
humerus head and/or shoulder posttraumatic degeneration.
We currently
recommend the removal of implant and continuous rehabilitation by
physiotherapist. Provision should be made for left
shoulder
replacement at the later stage.
Prognosis
:
Fair.
Future work
capacity
: The claimant managed to return to his pre injury
occupation as a waiter. He will have challenges with hard manual
labour
work. He completed matric and has a certificate of produce.
The injury sustained will force him to seek for lighter duty. He will
be incapacitated for 2 weeks to recuperate after the removal of
plate. Deferred to occupational therapist and industrial psychologist
for opinion. Total whole person impairment = 8 %.”
[14]
The plaintiff was examined by a neuropsychologist, Ms H Matlou
and a written report
was rendered on the 4
th
of
April 2019. The following extract from the report is
instructive: -
“
Cognitive
functioning
: Mr Makwakwa’s performance indicates a
pattern of variability in his neurocognitive functioning, in that
there were skills
that were intact and adequately functional, while
there were areas of impairment and poor functioning. His performance
in visual
spatial organisation, visual planning and visual perception
was average and his visual construction and his visual memory were
intact. This suggests better functioning in visually presented and
visually stimulating tasks. His verbal memory functioning showed
variability in that his incidental memory was intact, while his
contextual memory functioning was compromised. He displays poor
functioning in his working memory and complex attention, while his
functioning was intact in some areas of attention and concentration.
His performance declined in his mental tracking as he showed an
impaired functioning. His performance demonstrated a poor ability
to
keep track of more than one piece of information at the same time.
Mr Makwakwa showed difficulty in abstract verbal concept
formation. However, he displayed skilful functioning in social
reasoning. Mr Makwakwa sustained injuries to his arm and wrist.
Based on the information provided by Mr Makwakwa and the
documents perused, there was no head injury sustained. The hospital
records did not document any loss of consciousness and no report of
GCS score. Although Mr Makwakwa presents with neurocognitive
difficulties, this would be related to other factors in his case, as
he did not sustain a direct head injury. Rather, his concentration,
attention and memory are likely affected by his clinical depression
and PTSD. This is due to depression and anxiety having an adverse
impact on these cognitive functions, particularly if they are chronic
and are untreated for a prolonged period of time. His current
neurocognitive difficulties are likely due to the combined and
overlapping effects of his emotional difficulties in the form of
depression and PTSD and the impact of residual physical pain.
Emotional
functioning
: Mr Makwakwa’s psychological assessment
indicated that he has severe symptoms of depression. These include
symptoms of crying,
insomnia, lowered libido, self blame,
fatigue, worry over physical symptoms, helplessness, hopelessness,
irritability and
loss of enjoyment, amongst others. He also presents
with moderate post-traumatic stress disorder, as he reported repeated
and stressful
memories from the past, avoidance of talking about past
stressful events, being easily startled, being super alert and
watchful
and feeling like the future might be cut short and
physiological symptoms of anxiety. Additionally, the occurrence of
ongoing pain
and residual physical symptoms likely acts as an
exacerbating factor to his emotional distress. This is due to pain
having an adverse
effect on mood and the correlation between chronic
pain and depression… Traditionally, the occurrence of pain
would serve
as an emotional reminder for Mr Makwakwa, especially
since he is somebody who is still showing distress with regard to the
trauma of the accident. Collectively his symptoms are indicators that
he has not adjusted on a psycho emotional level to the
consequence of the accident in his life and may not have accepted the
occurrence of the accident.
Physical and
occupational functioning
: Mr Makwakwa is concerned about
the impact of his physical residual symptoms on his ability to do
jobs that need him to lift heavy
objects and move them around, which
points to worry about his viability and competitiveness in the open
labour market. This is
a reasonable concern from him as he has
largely served unskilled to semiskilled jobs. Mr Makwakwa
reported that he was completing
his first year at the time of the
accident. He had to drop out because he could no longer pay his fees
due to being unemployed.
Mr Makwakwa’s lack of sufficient
funds to pay for his education may result in him staying in the
current job market
longer than he had anticipated which will delay
his completion of his tertiary education. It will furthermore limit
his career
prospects.”
[15]
According to occupational therapist, Ms Mbhekiseni Dhlamini,
in her report dated 6 September 2019,
the plaintiff has
suffered a significant decline in earning capacity, particularly in
physically demanding occupations that require
intact use of the upper
extremities. The occupational therapist further opined that the
plaintiff is likely to struggle securing
new employment in the
future, particularly in the manual category, should he lose his
current employment.
[16]
Ms Dhlamini’s opinion regarding the plaintiff’s
restrictive prospects in the
job market, is shared by industrial
psychologist, Ms Myra Tambwe. Ms Tambwe drew the
following conclusions: -
[a]
The plaintiff’s employment prospects in the open labour market
are limited
due to his reduced competitiveness;
[b]
He has high risks of experiencing prolonged periods of unemployment.
A higher
than normal post-morbid unemployment contingency is
therefore recommended;
[c]
The estimate on the total duration of the recommended treatment
should
be established in order to predict the likely financial
impact;
[d]
The plaintiff has a higher risk of losing employment, more so due to
his psychiatric
symptoms;
[e]
His career ceiling is estimated at the mid-point between the lower
and medium
quartile for semi-skilled labourers (scenario 1) or at the
median quartile for semi-skilled labourers (scenario 2),
depending
on the availability of future opportunities. This entails
that the informal sector earnings for unskilled and semi-skilled
labourers
would currently be as follows: -
[i]
Unskilled labourers: R20,700.00 – R36,300.00 – R82,000.00
per year;
[ii]
Semi-skilled labourers: R36,300.00 – R82,000.00 –
R178,000.00
per year.
[2]
[17]
The actuary, Mr G A Whittaker, stated in his report
that the normal life expectancy
for a 20-year old male according to
the South African Life Tables 1984/1986 is 36.46 additional years.
Mr Whittaker stated
that the actuarially correct method is not
to rely on the life expectancy, but rather to work directly with the
life table. The
life table determines a complex pattern of survival
probabilities that are then used in the actuarial year by year
method.
[18]
Mr Whittaker stated that had the accident not occurred, the
plaintiff would have reached
his career ceiling at the upper quartile
wage for a semi skilled worker in the non-corporate sector,
earning R178,000.00 per
year at age 42½. Upon reaching
his career plateau, the plaintiff’s earnings would have
increased in line with
inflation only until his retirement age at
age 65.
[19]
Mr Whittaker provided for general contingency deductions such as
loss of earnings due to
illness, savings in relation to travel to and
from work and risk of future retrenchment and resultant unemployment.
He therefore
made a 5 % deduction from the plaintiff’s
past loss of earnings. In respect of the plaintiff’s future
earnings
Whittaker applied the following deductions: -
[a]
Uninjured earnings at 18.5 %;
[b]
Injured earnings at 33.5 %.
[20]
In summary, Mr Whittaker concluded that on the average lower
quartile and median wages for
a semi-skilled worker in the
non-corporate sector, and in applying the contingencies referred to
above, the plaintiff’s total
net future loss of earnings would
amount to R1,385,540.00, as opposed to R1,172,049.00 when the injured
ceiling at the median wage
for semi-skilled workers in the
non-corporate sector is applied.
[21]
In the circumstances the plaintiff submitted that an amount of
R1,385,580.00 would be justified
as an amount for loss of earning
capacity.
[22]
As far as
the plaintiff’s claim for general damages is concerned, the
plaintiff submitted that an amount of R500,000.00 would
be
appropriate in the circumstances. In support hereof, Mr Luvuno
for the plaintiff relied on
Mohlaba
v Road Accident Fund
(12010/2014) [2014] ZAGPPHC 12 (21 January 2016).
[3]
In this matter the plaintiff was a motor mechanic who experienced
reduced function in his dominant hand resulting from injuries
that he
sustained in a motor vehicle accident. The plaintiff was 20 years
old, could only be considered for sedentary and very
light work and
suffered from mild depression as a result of the accident. In
Mohlaba
the Court also referred to
Adv J P van
der Berg N.O. v Road Accident Fund
(unreported on 17
February 2014
in GNP case number: 10528/2011) where the plaintiff sustained similar
injuries to his arm and was awarded R500,000.00. The Court
accordingly found that an award of R540,000.00 for general damages in
that instance would be reasonable and fair. Mr Luvuno
argued
that in present day value the award would amount to R600,000.00 which
is a far higher amount than the amount claimed by
the plaintiff in
the present matter.
DEFENDANT’S
SUBMISSIONS
[23]
Ms Zungu
appeared on behalf of the defendant and referred the Court to
Lee
v The Road Accident Fund
.
[4]
Ms Zungu argued that
Lee
was a more comparable authority to the facts in the present matter
than
Mohlaba
referred to by Mr Luvuno. However, an immediate difference is
the age of the plaintiff. In
Lee
the
plaintiff was 40 years of age at the time of the collision and
started his employment as workshop manager shortly before the
accident. He had also reached his hierarchal career ceiling at the
time. His upper quartile earnings on Patterson C3 was estimated
at
p 50, although a similarity is that the plaintiff in that matter
would have continued working until the age of 65, were
it not for the
accident. Unfortunately, the Court did not indicate in its judgment
the nature and extent of the injuries sustained
by the plaintiff.
[24]
Ms Zungu did not dispute the contingencies
suggested by Mr Whittaker, the plaintiff’s actuary. She
did however submit
that the hospitality industry has been severely
impacted by the Covid 19 pandemic and the lockdown restrictions.
Ms Zungu
therefore submitted that there was a general reduction
in salaries. She therefore suggested that a further deduction of 20 %
as a contingency would be more than fair in the circumstances, which
would reduce the plaintiff’s claim for loss of earning
capacity
to an amount of R1,099,312.00. She also submitted that in the case of
general damages an award of R400,000.00 would be
reasonable.
[25]
In reply, Mr Luvuno argued persuasively that
the Covid-19 pandemic was not a consideration. The plaintiff had
always been employed
in the hospitality industry and if anything, the
Covid-19 pandemic and the negative impact that it had on the
hospitality industry
would count in the plaintiff’s favour in
that he would run the risk of retrenchment due to the reduction in
employment opportunities
within the hospitality industry. Moreover,
so Mr Luvuno argued, the plaintiff’s position would be
regarded as sheltered
employment because of his injuries and he would
accordingly be first in line in the event that the employer elects to
reduce the
workforce.
[26]
It bears mentioning that the defendant did not
file any expert reports.
DELIBERATION
[27]
The
locus
classicus
with regard to contingencies is the judgment of Nichols JA in
Southern
Insurance Association Ltd v Bailey N.O.
[5]
where the Court stated
that:
-
“
Where the
method of actuarial calculation is adopted, it does not mean that the
trial judge is tied down by inexorable actuarial
calculations. He
[she]
has a
large discretion to award what he
[she]
considers
right.”
[6]
[28]
Zulman JA,
with reference to various authorities, including
Southern
Insurance
,
stated the following in
Road
Accident Fund v Guedes
:
[7]
-
“
The calculation
of the quantum of a future amount, such as loss of earning capacity,
is not, as I have already indicated, a matter
of exact mathematical
calculation. Such an enquiry is speculative and the court can
therefore only make an estimate of the present
value of the loss
which is often a very rough estimate (see for example Southern
Insurance Association). The court necessarily
exercises a wide
discretion when it assesses the quantum of damages due to loss of
earning capacity and has a large discretion
to award what it
considers right. Courts have adopted the approach that in order to
assist in such a calculation, an actuarial
computation is a useful
basis for establishing the quantum of damages. Even then, the trial
court has a wide discretion to award
what it believes is just.”
[29]
The plaintiff’s highest form of qualification is a matric
certificate and he continued
to work after the accident. I am not
persuaded by the defendant’s argument that a further deduction
of 20 % should be
made to the loss of earning capacity, more
especially, because the parties agreed that the contingency applied
by the actuary,
Mr Whittaker, is fair. I therefore find that an
amount of R1,385,580.00 towards the plaintiff’s loss of earning
capacity
is reasonable in the circumstances.
[30]
From the expert reports it is clear that the plaintiff has suffered
an injury which has a permanent
effect on his life, in particular his
future earning capacity. The plaintiff is vulnerable and compromised
in his capacity for
sustaining occupation while having to rely on his
level of physical fitness to secure an income. In support of the
respective arguments,
I was referred to
Mohlaba
and to
Lee
and I have already indicated that I am not persuaded that
Lee
is an appropriate comparable in the circumstances.
[31]
In arriving at a fair award, I have taken into consideration: -
[a]
the age of the plaintiff;
[b]
the fact that he has already reached his maximum medical improvement
and that
he will have to live with the scars and the restricted arm
movement for life;
[c]
he has suffered mild depression as a result of the accident.
[32]
Although the plaintiff would be able to further his studies, he is
restricted by his earning
capacity in order to pay for these studies.
I have therefore also taken this factor into consideration.
[33]
When making
an award the Court must take care that the award is fair to both
parties and give just consideration to all aspects
applicable.
[8]
[34]
I am therefore of the view that an award of R480,000.00 for general
damages in this instance
will be a reasonable and fair award. It must
be remembered that the plaintiff is not totally incapacitated and
that his depression
will be managed more effectively and will improve
should he receive appropriate medical treatment.
ORDER
[35]
Accordingly, judgment is granted in favour of the plaintiff and I
make the following order: -
“
1.
The defendant shall make payment to the plaintiff of the amount of
R1,385,540.00 (one million
three hundred and eighty five thousand
five hundred and forty Rand) in respect of the plaintiff’s loss
of earning capacity.
2.
The defendant shall pay to the plaintiff the amount of R480,000.00
(four hundred and
eighty thousand Rand) in respect of the plaintiff’s
claim for general damages.
3.
The defendant shall make payment of the amount of R1,865,540.00 into
the following
bank account: -
Name of
account
: N T Mdlalose
Inc Trust Account
Bank
:
Nedbank
Branch
code
:
198 765
Account
number
:
1003372570.
4.
In the event of the aforesaid amount not being paid timeously, the
defendant shall
be liable for interest on the amount at the rate of
10 % per annum, calculated from the 15
th
calendar day
after the date of this order to the date of payment.
5.
The defendant shall pay the plaintiff’s taxed party and party
costs on the High
Court scale, subject thereto that: -
5.1
In the event that the costs are not agreed:
5.1.1 the
plaintiff shall serve a notice of taxation on the defendant;
5.1.2 the
plaintiff shall allow the defendant 14 (fourteen) court days from the
date of allocatur to make payment of
the taxed costs;
5.1.3
should payment not be effected timeously, the plaintiff will be
entitled to recover interest at the rate of 10 %
per annum on
the taxed or agreed costs from the date of allocatur to date of final
payment;
5.2
Such costs shall include: -
5.2.1 the
costs incurred in obtaining payment of the amounts mentioned in
paragraphs 1 and 2 above;
5.2.2 the
costs of counsel, including counsel’s charges in respect of his
attendance on 8 and 9 March 2021,
as well as reasonable
preparation costs;
5.2.3 the
costs to date of his order, which costs shall include but not be
limited to preparation for trial and attendance
at Court, which shall
include all costs previously reserved;
5.2.4 the
costs of the orthopaedic surgeon, the occupational therapist, the
industrial psychologist, the clinical psychologist
and actuary and/or
affidavits obtained by the plaintiff, as well as such reports
furnished to the defendant and/or its former attorneys,
as well as
all reports in their possession and all reports contained in the
plaintiff’s bundles, irrespective of the time
elapsed between
any reports by an expert;
5.3
The reasonable and taxable preparation of qualifying and reservation
fees, if any, in such amount as allowed by the Taxing Master of the
experts as in paragraph 5.2 above;
5.4
Costs and expenses incurred by and on behalf of the plaintiff in, as
well as the costs consequent to attending the medico-legal
examinations;
5.5
The costs of holding all pre-trial conferences and judicial
management
meetings, as well as roundtable meetings between the legal
representatives for both the plaintiff and the defendant, including
counsel’s charges in respect thereof, irrespective of the time
elapsed between pre-trials, if any;
5.6
The costs of and consequent to compiling all minutes in respect of
pre-trial
conferences, including counsel’s charges.
6.
The defendant shall furnish to the plaintiff an undertaking limited
to 100 %
in terms of
section 17(4)(a)
of the
Road Accident Fund
Act, 56 of 1996
, for the costs of the future accommodation of the
plaintiff in a hospital or nursing home, or treatment of or rendering
of service
or supplying of goods to the plaintiff, arising out of the
injuries sustained in the motor vehicle collision on 1 July 2016,
and the sequelae thereof, after such costs have been incurred and
upon proof thereof.
[36]
A written contingency fee agreement was concluded between the
plaintiff and the plaintiff’s
attorneys and a copy thereof has
been uploaded onto CaseLines, as requested by me. I considered the
content of the contingency
fee agreement and hold the view that the
agreement complies with both the
Contingency Fees Act, 66 of 1997
and
with the judgment of this Court in
Masango
v Road Accident Fund
.
[9]
F
BEZUIDENHOUT
ACTING
JUDGE OF
THE
HIGH COURT
Date
of hearing:
8 and 9 March 2021
Date
of judgment:
26 July 2021
APPEARANCES:
On
behalf of plaintiff:
Adv Luvuno
luvunojabu@gmail.com
Instructed
by:
NT Mdladlose Incorporated
derick@ntmdladloseinc.co.za
On
behalf of defendant:
Ms P Zungu
Senior Claims Handler
ZaneleZu@raf.co.za
[1]
Road
Accident Fund Act 56 of 1996
[2]
Koch
RJ: Quantum Yearbook 2019.
[3]
2016
JDR 0130 (GP).
[4]
2017
JDR 1378 (GP).
[5]
1984
(1) SA 98 (A).
[6]
At
pp 116 and 117.
[7]
(611/04)
[2006] ZASCA 18
(RSA) (20 March 2006).
[8]
De
Jongh v Du Pisanie N.O.
2005 (5) SA 457
(SCA) at 476D, paragraph [60].
[9]
2016
JDR 1586 (GJ).