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[2021] ZAGPJHC 407
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Khumalo v Road Accident Fund (05760/2019) [2021] ZAGPJHC 407 (7 September 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
7/09/2021
Case
No.: 05760/2019
In
the matter between:
WANDILE
KHUMALO
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
JUDGMENT
MAKHOBA J:
[1]
The Plaintiff instituted an action against the defendant for damages
suffered as the
result of injuries sustained in a motor vehicle
accident that occurred on 18 February 2018.
[2]
The merits of the matter have been settled between the parties 80%
(eighty percent)
in favour of the Plaintiff. The Defendant was not
represented on the date of trial and the attempt to settle the matter
did not
yield any results, on behalf of the Plaintiff, Counsel for
the Plaintiff asked the court to proceed via a video link. Counsel
addressed
the Court and referred the Court to his heads of argument.
I was asked to decide the matter based on the papers, and no oral
evidence
was led.
[3]
The Plaintiff file the following medical-legal reports of the
following experts:
3.1 Dr
H.J. Edeling – Neurosurgeon
3.2 Dr
C. Barlin – Orthopedic surgeon
3.3 P
Gibson – Neuropsychological and Educational Therapist
3.4 Dr
L.L. Mashayambombe – Special Psychiatrist
3.5 Dr
C. Sampson – Clinical Psychologist
3.6 B.
Pillay – Occupational Therapist
3.7 L
Badenhorst – Industrial Psychologist
There are no reports on
behalf of the Defendant. \
[4]
In the
Road Accident Fund vs Marunga
2003 (5) SA 164
(SCA
) the
Court said that there was no hard and fast rule of general
application requiring the court or a court of appeal to consider
past
awards. The Court further said that awards on decided cases might be
of some use and guidance. Furthermore, in
Sandler vs Wholesale
Coal Supplier Ltd 1941 AD
the court held the amount to be awarded
as compensation and the figure arrived at compensation depends on the
Judges view of what
is fair in all circumstances. See also AA Mutual
Insurance Association Ltd vs Maqula
1978 (1) SA 805
(A):
Road
Accident Fund v Guedes
2006 (5) SA 583
(SCA)
at para 8. Thus
therefore the award of general damages must be fair to both the
Plaintiff and the Defendant. See
also Pitt vs Economic Insurance
Company Limited
1975 (3) SA 284
(H).
[5]
In considering the injuries sustained by the Plaintiff as well as
taking into account
the case law referred to by counsel, I informed
counsel that in my view the appropriate award for damages is R 900
000.00 (nine
hundred thousand rand) after taking into account 80/20%
apportionment of damages, counsel agreed to the amount and stated
that
it is reasonable.
[6]
The only issue to be determined is loss of earnings. Counsel in his
calculation on
paragraphs 34-39 of his heads of argument suggested an
amount of R4170508.00 (Four million one hundred and seventy thousand
five
hundred and eight rand) after less 20% apportionment.
[7]
Contingencies protect the individual from consequences that come as a
result of motor
vehicle collisions. The
locus classicus
with
regard to contingencies is the judgment of Nicholas JA at 116-117 of
the decision in
Southern Insurance Association vs Bailey NO
1984
(1) SA 98(A)
the court said “where the method of actuarial
calculation is adopted, it does not mean that the trial Judge is
tied: down
by inexorable actuarial calculations. He has a large
discretion to award what he considers right”. Zulman JA, with
reference
to various authorities including Southern Assurance
decision, said the following in the
Road Accident Fund vs Guedes
(611/04) [2006] SCA 18 RSA
“
The calculation of the
quantum of the future amount, such as loss of earning capacity, is
not as I have already indicated, a matter
of exact mathematical
calculation. By its nature, such an enquiry is speculative and a
court can therefore only make an estimate
of the present value of the
loss that is often a very rough estimate (see, for example, southern
Insurance Association Ltd vs Bailey
NO) courts have adopted the
approach that, in order to assist in such calculation, amount to be
awarded as compensation and the
figure arrived at depends on the
Judges view of what is fair”.
[8]
In the
De Jongh vs Du Pisane 2004 5 QOD J2-103 (SCA)
the
Plaintiff was 35 years old at the time of collision. The Supreme
Court of Appeal found further that contingency factors cannot
be
determined with mathematical precision. The court found further that
contingency deductions are discretionary. The court confirmed
10%
(ten percent) contingency deduction applied by the trial court.
[9]
In the matter of De Kock vs Road Accident Fund Case no 2237/2013
reported on the 22
nd
of April 2015 in the High Court of
South Africa (Gauteng Division, Pretoria) the Court once again
confirmed the approach to be
taken with the calculation of loss
stated in paragraph 22 as follows:
“
[22]
In approaching claims of this nature,
the courts have always had to open to it two possible approaches,
namely:
22.1 either that the
Judge makes a round estimate of an amount which seems to him to be
fair and reasonable. That matter is entirely
a matter of guesswork –
a blind plunge into the unknown; or
22.2 that the Judge
tries 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.
[23]
It is manifest that either approach involves guesswork to a greater
or lesser extent. However,
the court cannot for this reason adopt a
non possumus attitude and make no award.
[24]
The inherent difficulties and uncertainties therein manifest, it has
generally been accepted
that it is preferable to make an assessment
based on actuarial calculations rather than to take a blind plunge in
to the unknown.
[25]
I prefer this approach.
[26]
Where the actual approach is adopted, the traditional method entails
a four stage process as
follows:
26.1
Calculate the present value of the future income which the plaintiff
would have earned but for the
injuries and the consequent disability.
26.2
Calculate the present value of the plaintiffs future income, if any,
having regard to the disability.
26.3
Subtract the figure obtained under 26.2 from that obtained under
26.1.
26.4
Adjust the figure obtained as a result of this subtraction in the
light of all relevant factors and
contingencies.”
[10]
In this matter before me, the plaintiff was a student studying at the
University of Johannesburg. He
was studying a BA in Humanities from
2014 to 2017. In 2017, he did not sit for the whole examination.
[11]
The plaintiff is not employed and was only selling books and
delivered graduations gowns on a
part-time basis. It is not clear how
much he earned for this part-time job. However, he continued to earn
some income from such
business ventures.
[12]
In order for the court to be able to apply proper calculation of the
quantum of the past and
future amounts, such as the loss of earning
capacity all the facts about his earning capacity must be put before
court.
[13]
The court must calculate the present value of the future income,
which the plaintiff would have
earned, but for the injuries and the
consequence disability. However, the plaintiff in this matter before
me will be compensated
for his injuries. The plaintiff does not have
a disability that will prevent him from completing his studies and
becoming employed.
[14]
In my view, the plaintiff cannot be compensated for what he will earn
after he obtains his degree
and is employed. He is still able and is
currently busy with his studies to complete his degree. The injuries
temporarily hindered
him to complete his studies. He is not injured
to such an extent that he will be unable to complete his studies and
be employed.
[15]
I therefore disagree with submission that he is entitled to be
compensated an amount of R4170508.00
(four million one hundred and
seventy thousand five hundred and eight rand) as though he is
disabled and unable to complete his
university studies.
[16]
A Plaintiff bears the onus of proving that his damages claimed are
reasonable. Thus, a Defendant,
could counter the method and measure
of damages claimed on the basis that the amount was not reasonable
because the Plaintiff was
more likely to use public health care,
which was as good as and cheaper than, private health care. I am
therefore of the view that
the Plaintiff did not prove that he is
entitled to the amounts claimed for past and future medical expenses.
[17]
I do agree that in future he might experience hindrances and might
even retire sooner than expected
but still the amount claimed for
future loss of earnings is excessive and would have been justified if
the plaintiff was known
as physically disabled to complete his
studies.
[18]
I therefore, make the following order:
1.
The defendant is to pay the net capital amount R 1200 000.00 (one
million two
hundred thousand rand only) in full and final settlement
of the plaintiff’s claim.
2.
The amount referred to in paragraph 1 supra is the amount payable to
the plaintiff,
after applying the agreed 20% apportionment and is
made up as follows:
2.1
Past Loss of Earnings
R 50 000.00 (fifty thousand rand only)
2.2
Future Loss of Earnings
R 250 000.00 (two hundred and fifty thousand rand only)
2.3
General Damages
R 900 000.00 (nine hundred thousand rand only)
Total =
R 1200 000.00 (one million two hundred thousand rand only)
3.
The amount referred to in paragraph 1 supra shall be payable within
180 (one
hundred and eighty) days hereof into the Trust Account of
the plaintiff’s attorney of record, S.Twala Attorneys, the
details
of which are:-
3.1
Name:-
S.Twala Attorneys Trust Account
3.2
Bank :-
First National Bank
3.3
Branch Code:-
25 17 05
3.4
Account No:-
[....]
4.
The defendant shall furnish to the plaintiff an undertaking in terms
of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
within
14 (fourteen) days from date hereof, for the costs of the future
accommodation of the plaintiff in a hospital or nursing
home, or
treatment of or rendering of a service or supplying of goods to the
plaintiff, arising out of the injuries sustained in
a motor vehicle
collision on 18 February 2018 and the sequelae thereof, after such
costs have been incurred and upon proof thereof,
limited to 80%.
5.
The defendant shall pay the plaintiff's taxed costs, such costs to
include:-
5.1
the costs incurred in obtaining payment of the amount referred to in
paragraph 1 supra;
5.2
the reasonable costs of the reports including addendum reports, RAF 4
forms, consultation
fees and attending to sign affidavits, where
applicable, of the plaintiff’s experts namely:-
5.2.1 Dr.H.J.Edeling
neurosurgeon
5.2.2 Dr.C.Barlin
orthopaedic surgeon
5.2.3 Dr.L.L.Mashayamombe
psychiatrist
5.2.4
Mr.C.Sampson
clinical psychologist
5.2.5
Ms.M.A.Gibson
educational psychologist
5.2.6 Ms.B.Pillay
occupational therapist
5.2.7
Dr.L.Badenhorst
industrial psychologist
5.2.8 Munro Forensic
Actuaries
actuary
5.3
the costs consequent upon the employment of counsel including the
costs of consultations,
preparation, drafting pre-trial agendas and
pre-trial minutes and appearances on trial.
6.
The notice of taxation shall be served on the defendant.
7.
The defendant shall make payment of the taxed or agreed costs within
14 days
of taxation or agreement.
8.
The defendant shall be liable for interest a tempora mora on the
agreed or taxed
costs from 14 (fourteen) days after agreement or
taxation to date of payment.
Judge
of the High Court
Makhoba
J
Counsel
for the Appllicant
: Adv M.
Patel
Instructed
by
: S Twala
Attorneys Incorporated
Counsel
for the Respondent
: No
appearance
Claims
Handlers/Officials
: M. Majozi
P.Ncukane
S. Mngcele
N.Q. Qzungu
H. Kirsten
Date
of hearing
: 26 August
2021
Date
judgment delivered
:
7
September 2021