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[2021] ZAGPJHC 557
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Melusi v Road Accident Fund (42879/2018) [2021] ZAGPJHC 557 (31 August 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 42879/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
31
August 2021
In
the matter between:
MGUNI
MELUSI
Plaintiff
and
ROAD
ACCIDENT
FUND
defendant
Judgment
Mdalana-Mayisela
J
[1]
The plaintiff instituted an action in terms of the Road Accident Fund
Act, 56 of 1996 (as amended), against the defendant for
delictual
damages. The claim arises from an identified motor vehicle collision
that occurred on 17 May 2017, at corner Oxford and
Glenhove streets
in Rosebank, at which time the plaintiff was a pedestrian.
[2]
The plaintiff in his amended particulars of claim is suing the
defendant for general damages, future medical expenses and future
loss of earnings. The defendant is opposing the action and has filed
a plea through its former attorneys of record, Molefe Dlephu
Attorneys. On 13 August 2020 the defendant’s attorneys withdrew
as attorneys of record. As a results thereof, the plaintiff
seeks a
default judgment against the defendant.
[3]
On the first day of the hearing of this matter I stood it down for a
possible settlement on request by the plaintiff and the
defendant’s
claim handler. The parties then settled the issues of liability and
future medical expenses at 80/20 in favour
of the plaintiff. Ms
Dladla, a claim’s handler confirmed the settlement on behalf of
the defendant. I was advised by the
plaintiff’s counsel that
the issue of general damages has been abandoned by the plaintiff. The
only remaining issue to be
determined by this court is future loss of
earnings.
[4]
Both parties have filed the reports of orthopaedic surgeons,
occupational therapists, industrial psychologists, and their joint
minutes. The plaintiff has also filed the reports of the clinical
psychologist and actuary. The plaintiff relies on an actuarial
calculation prepared on the basis of the joint minute of the
industrial psychologists. The experts did not give oral evidence.
The
plaintiff filed the affidavits of all his experts confirming their
reports. The plaintiff’s counsel submitted that I
may consider
all the joint minutes as part of the record in determining the issue
in dispute. The plaintiff has submitted his evidence
by affidavit.
[5]
It is common cause between the parties that the plaintiff was
involved in a motor vehicle collision on 17 May 2017 as a result
of
which he sustained a left medial malleolus fracture. It is also
common cause that he received the plaster cast and conservative
treatment for this injury at Hillbrow clinic and Johannesburg General
Hospital.
[6]
The plaintiff was born on 27 February 1978 in Zimbambwe. He was 39
years old when the motor vehicle collision occurred in 2017.
It is
not clear from the evidence whether he completed grade 11 or grade 12
at school. He has not submitted proof of qualifications.
He is a
self-employed Newspaper Salesman. He commenced his business in 2009.
He buys The Star, Sowetan, Business Day, Daily Sun,
Sunday Times and
Saturday Star newspapers with his cash at the Daily Sun Offices in
Johannesburg CBD, and thereafter travel to
Rosebank to sell them.
[7]
During his medical assessment he informed the Industrial
Psychologists that at the time of the motor vehicle collision, he was
earning R25,000.00 pm and he spent R10,000.00 – R15,000.00 pm
to buy newspapers. He filed proof of service and earnings from
Courtyard Hotel, Doppio Zero, Lisa Mackay, tashas Rosebank, Allan
Bulmer, Winston Hotel, Megan Tilney and Holiday Inn Hotel Rosebank
which show that his total monthly turnover is R16,694.00. He did not
file proof of invoices for the newspaper purchases. He alleges
that
he does not own a bank account with any of the banking institutions
in the Republic of South Africa.
[8]
In order to succeed on a claim for future loss of earnings the
plaintiff must prove on a balance of probabilities that he suffered
a
significant impairment giving rise to a reduction in earning
capacity. There must be proof that the reduction in earning capacity
gives rise to pecuniary loss (
see Rudman v Road Accident Fund
2003
(2) SA 234
SCA; Masiza v Road Accident Fund (A163/16) [2021] ZAGPJHC
94 (7 January 2021)
).
[9]
The plaintiff alleges that he experiences stiffness and pain in his
left ankle after walking a long distance. Dr Ngobeni, plaintiff’s
orthopaedic surgeon opines that he is prone to develop post traumatic
arthritis on the left ankle, as the fracture is intra articular
and
it is a weight bearing joint. Dr Ngobeni further opines that the left
ankle pain will make it difficult for the plaintiff to
work in a
standing position for a long period of time. His duties will have to
be amended to accommodate his injuries.
[10]
Dr Schepers, defendant’s orthopaedic surgeon and Dr Ngobeni in
their joint minute note that the results of the radiology
examination
show that there is cortical incongruence and a dorsal aspect bony
exostosis of the talus bone, and marginal osteophyte
changes are
demonstrated at the dorsal aspect of the talonavicular joint. The
talonavicular joint is a joint formed by the talus,
the bottom half
of the ankle joint. It is critical in allowing the foot to move
inwards and outwards, as well as in circulation
motion. Dr Ngobeni
opines that the plaintiff is not disabled but has impairment of left
ankle function. He recommends the left
ankle arthrodesis at a later
stage when the plaintiff develops significant degenerative changes.
[11]
Mrs Hleziphi Matlou, the plaintiff’s clinical psychologist in
her addendum report states that the plaintiff’s scholastic
and
vocational history suggests that his pre-morbid neurocognitive level
of functioning was fairly average. His assessment scores
on
concentration, attention, processing speed, memory, social and
abstract reasoning, language functioning, visual motor and visual
memory, planning and performance, are suggestive of neurocognitive
difficulties and impairment. His emotional assessment suggests
anxiety and severe symptoms of depression. She opines that his
neurocognitive functioning is likely adversely affected by his
clinical depression and the residual physical pain. She states that
plaintiff is concerned about the impact of his physical residual
symptoms on his ability to do jobs that require him to stand and walk
for long periods, which points to a worry about his viability
and
competitiveness in the open labour market. She opines that this is a
reasonable concern as he has largely served in unskilled
to
semi-skilled jobs. She further states that his loss of work also acts
as a perpetuating factor to his emotional disturbances.
She concludes
that the combined effects of his neurocognitive deficits, his
emotional difficulties and physical symptoms would
jeopardize his
prospects of attaining employment in the open labour market, and his
ability to maintain employment once secured.
[12]
The occupational therapists, Mr Mbhekiseni Dhlamini and Ms Nicole de
Bree in their joint minute opine that the plaintiff’s
occupation as a Newspaper Salesman, falls within light with some
elements of medium-physical demands in nature with significant
standing and mobility demands. Post-accident the therapists opine
that the plaintiff’s overall physical capacity falls within
the
sedentary to medium physical demands. He will however, as a result of
the accident struggle to execute duties that require
prolonged
periods of standing, walking and below knee level reach work. They
further opine that the injury has somewhat affected
the plaintiff’s
vocational potential and employability, more particularly should he
develop degenerative changes and undergo
the left ankle arthrodesis
at a later stage when indicated.
[13]
Pre-morbid the Industrial Psychologists, Ms Zaheerah Fakir and Ms Pat
Matla disagree on the earnings assumptions. Ms Fakir
opines that the
plaintiff was working and earning within the semi-skilled capacity at
the time of the motor vehicle collision.
She classifies his earnings
at that time to be at the semi-skilled non-corporate level: R20 600 –
R59 000 – R151 000
per annum. She further opines that he would
have in all likelihood continued to work as he had, or in similar
positions, earning
in the above capacity towards the upper quartile
of the aforementioned salary scale. The 2020 salary scales for
semi-skilled, non-corporate
worker’s earnings are R37 900 - R86
000 – R186 000 per annum (Quantum Yearbook, 2020). Ms Matla
opines that given his
level of education and work history, he was
employable as an unskilled worker in the non-corporate sector or in
the informal sector
as a self-employed person, and that he would have
most probably remained working as a self-employed person in the
informal sector
for most of his life if he had not encountered the
accident in question. The 2017 suggested earnings assumptions for a
self-employed
person in the informal sector are R8 100 – R20
600 – R59 000 per annum (Quantum Yearbook, 2017). The
Industrial Psychologists
agree that he would have been able to work
up until normal retirement age of 65.
[14]
Post-morbid the orthopaedic surgeons noted that the results of the
radiology examination show that there is cortical incongruence
and a
dorsal aspect bony exostosis of the talus bone, and marginal
osteophyte changes are demonstrated at the dorsal aspect of
the
talonavicular joint. Ms Fakir opines that should the plaintiff
continue to experience the pain he does, he may be unlikely
to
continue working, and should he attempt to work he will be unlikely
to earn as he did. Ms Matlou opines that he will struggle
to find
employment in the open labour market due to neuropsychological
(depression and anxiety), neurocognitive and orthopaedic
injuries. Ms
Matla opines that his future employability is largely dependent on
whether he develops degenerative changes in his
left ankle. In the
event that he does develop degenerative changes in his left ankle, he
will not be suited to work in any of his
pre-accident occupations as
these occupations require frequent walking and thus he would be
rendered as a greatly disadvantaged
and vulnerable job seeker in the
open labour market. Ms Matla proposes that should he develop
degenerative changes he may stay
self-employed and employ an
assistant to do the deliveries and sales. However, this will require
an extra expense incurred.
[15]
The Industrial Psychologists agree that when the plaintiff receives
the necessary treatment and pain management he may continue
to work
but will not earn as he did before the accident, considering his
reported difficulties, thus suffering a partial loss of
income for
which he should be compensated.
[15]
Considering the opinions of the aforementioned experts, I am
satisfied that the plaintiff has proved on a balance of probabilities
that post-morbid he suffered a significant impairment giving rise to
a reduction in earning capacity, and resulting in pecuniary
loss.
What remains to be determined is the amount of damages.
[14]
Regarding the approach in the adjudication of future loss of
earnings, in the
locus classicus of Southern Insurance Association
Ltd v Bailey NO
1984 (1) SA 98
(A)
it was stated as follows:
“
Any
enquiry into the 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..
.”
[15]
The plaintiff is claiming R3 000 000.00 for loss of future earnings.
The onus rests on the plaintiff of proving, not only that
he has
suffered damage, but also the quantum thereof (
Erasmus v Davis
1969 (2) SA 1
(A) 9E
). The plaintiff has filed an actuarial
report prepared by Algorithm. The actuary calculated the loss of
future earnings in accordance
with the joint minute of the Industrial
Psychologists. The plaintiff informed the Industrial Psychologists
that at the time of
the motor vehicle collision his turnover was
R25,000.00, the expenses for newspaper purchases were R10,000.00 –
R15,000.00
and his average profit was R12,500.00 pm. In the actuarial
report dated 23 February 2021 the actuary used the average monthly
profit
of R12,500.00 for basis I and III. Basis I is for retirement
age of 65 and basis II is for retirement age of 70. For basis II he
used the upper quartile earnings for self-employed persons in the
informal sector. Counsel for the plaintiff submitted that I should
award the damages for future loss of earnings for the amount of
R488,499.00 stated on basis 1A.
[16]
During the preparation of my judgment I noticed that the amount of
R25,000.00 used by the actuary in the preparation of the
aforementioned actuarial calculation was not in accordance with the
proof of earnings filed by the plaintiff. I then made a request
that
a revised actuarial calculation be prepared in accordance with the
proof of earnings of R16,694.00 filed by the plaintiff.
I am indebted
to the plaintiff’s legal representative for acceding to my
request.
[17]
In the revised actuarial calculation dated 27 August 2021 the
plaintiff’s average monthly profit is R4,194.00. His earnings
have been taken as R50,328.00 per annum from 17 May 2017, increasing
in line with headline inflation to R59,608.00 on 1 September
2021.
His earnings would have increased in future as per the inflation of
earnings assumption until retirement age. The actuary
has prepared
two basis of calculations based on the retirement age of 65 and 70. I
am not considering the retirement age of 70
because the Industrial
Psychologists in their joint minute agreed on a retirement age of 65.
Counsel for the plaintiff also submitted
that the court should
consider a basis of the retirement age of 65.
[18]
The value of income uninjured is R828,386.00 and is the same amount
for the value of income injured. The actuary was instructed
by the
plaintiff’s attorney to apply a higher than normal contingency
deduction on the value of income injured. He applied
10.50% on
uninjured income and 30.50% on injured income. The net future loss of
income on basis I is R165,678.00. The revised actuarial
calculation
also provides for a past loss of income, however the plaintiff in his
original particulars of claim and the amended
particulars of claim
has not claimed past loss of income.
[19]
I am satisfied with the assumptions and the higher than normal
contingency deduction applied by the actuary to provide for
the
future uncertainties on the following reasons. Professor Schepers
opines that the plaintiff’s prognosis seems good. The
orthopaedic surgeons in their joint minute do not indicate when the
plaintiff is expected to develop significant degenerative changes
in
his ankle which will render him unsuited to work as a Newspaper
Salesman or any of his previous occupations. Thus, allowing
for
contingencies is one of the elements in exercising the discretion to
award damages (
Southern Insurance Association Ltd v Bailey supra
at 116H
).
[20]
The plaintiff seeks costs of the action. He is successful on
liability, future medical expenses and future loss of earnings.
I
find no reason why the costs should not follow the event.
[21]
In the premises I make the following order:
ORDER
1.
The defendant shall pay the plaintiff the
capital sum of R132,542.40 post apportionment of 80/20% for future
loss of earnings suffered
as a result of the motor vehicle collision
which occurred on 17 May 2017.
2.
The amount referred to in paragraph 1 above
shall be paid into the Trust account of the plaintiff’s
attorneys of record, NT
Mdlalose Incorporated, Nedbank branch code
198765, account number [....].
3.
The defendant shall furnish the plaintiff
with the undertaking in terms of section 17(4)(a) of Act 56 of 1996
limited to 80% for
the costs of future accommodation of the plaintiff
in a hospital or nursing home and such treatment, services or goods
as he may
require as a result of the injuries he sustained from the
aforesaid motor vehicle collision.
4.
The defendant shall pay the plaintiff’s
taxed or agreed party and party costs which costs shall include
counsel’s fees
on the applicable High Court Scale.
MMP
Mdalana-Mayisela J
Judge
of the High Court
Gauteng
Division
(
Digitally
submitted by uploading on Caselines and emailing to the parties)
Date
of delivery:
31 August 2021
Appearances:
On
behalf of the plaintiff:
Adv N Mabena
Instructed
by:
N.T Mdlalose Inc
On
behalf of the defendant: No
appearance