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[2020] ZAGPPHC 66
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Masango v Road Accident Fund (69361/17) [2020] ZAGPPHC 66 (10 February 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
69361/17
10/2/2020
In
the matter between
NONHLANNHLA
MASANGO
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
Coram:
HUGHES J
JUDGMENT
HUGHES
J
[1]
The plaintiff, Nonhlanhla Masango, was a passenger in motor vehicle
[….], which was involved in a motor vehicle collision on 16
February 2016 with another motor vehicle bearing registration
[….].
The issue of liability has been settled between the parties on the
basis that the defendant's liability is 100% of
the plaintiffs proven
damages. The only issue outstanding is that of quantum.
[2]
In respect of quantum the plaintiff has accepted the defendant's
offer of R350
000.00 for the claim of general damages of the
plaintiff. l need not concern myself with this aspect any longer. The
defendant
has also offered, which offer was accepted by the
plaintiff, to provide the plaintiff with an undertaking in terms of
section 17(4)
(a) of the
Road Accident Fund Act 56 of 1996
, where the
defendant ls to reimburse the plaintiff 100% for the costs of any
future accommodation in a hospital or nursing home,
treatment or
rendering of services to plaintiff or the supplying of goods to her
arising out of the injuries she sustained in the
collision upon which
this action is based.
[3]
There was no claim instituted for past medical expenses. The only
issue before
this court is that of loss of earnings. The plaintiff as
at the date of the collision was unemployed but volunteered as a
paramedic
assistant, as a volunteer she earned no income. According
to the hospital records she sustained the following injuries: an
injury
of the right leg and left shoulder; a 5 cm laceration on the
chin; a haematoma on the occipital area; pain and limited motion
range
of the right knee, right hip and left shoulder and there were
no fractures or dislocations.
[4]
Dr Birrell an orthopaedic recorded, having examined the radiologist
report,
that there is a tiny anterior osteophyte formation at C4 and
a smaller antero-superior osteophyte at C3 and the anterior inferior
border of C2. He does record that the plaintiff Is capable of
returning to work as a volunteer ambulance worker and that she is
also capable of working as a security guard. According to Dr
Mokhuane, a psychiatrist, the plaintiff suffers from Somatoform pain
disorder, depression and posttraumatic stress disorder. Whilst, Dr
Roper, a clinical psychologist, diagnosis was that the plaintiff
suffered from posttraumatic stress disorder and major depressive
disorder. He believed that this was as a result of how she had
dealt
with the traumatic event of the collision, even though she had only
suffered a mild head injury with no neuropsychological
changes.
[5]
The occupational therapist Ms Van de Walt, opined that the plaintiff
was able to engage
in light strength demands with no impairment of
mobility and tolerance for posture of sitting, standing and stooping.
She was best
suited for tasks that have practical cognitive demands.
Due to her light strength demand and mood disorder she could not
resume
her position as a voluntary ambulance assistant but was rather
suited as a security, which course she had completed but never worked
therein. Of importance is the fact that Ms Van der Walt is optimistic
that with rehabilitation 'she might return to work as ambulance
assistant on the level that she functioned pre accident.'
[6]
Mr Moodie, the industrial psychologist, is of the opinion that the
plaintiff
would have probably continued as a volunteer ambulance
assistant until 2019, bearing in mind that she fell pregnant In 2017
and
gave birth In 2018. Of course during this time, she would be
selling her Avon Products as she has alluded to. From 26 November
2019, it would take her 6-12 to secure employment as a basic
ambulance assistant, who earn between R9 000-R12 000 per month. Now
she can only do sedentary or light duty work, although, she would not
earn on a lower salary scale in respect of individuals having
passed
Grade 12 level of education. The plaintiff having attained Grade 12.
Though she states that having regard to the sequelae
of her Injuries
she would only obtain promotional recognition at a later stage and
progress on a slower pace than her counterparts.
That
said
she would then reach her career
ceiling 3 to
5 years
later
and plateau 1 to 2 Patterson levels lower than individuals with a
Grade 12 level, meaning her career ceil would be attained
at age
47-59 on Patterson 81/82.
[7]
The following considerations were set out in the actuarial
report of
Mr Potgieter the actuary with GRS Actuarial Consulting:
Had
the accident not occurred
'Ms
Masango's income would have been as follows:
•
R2' 400 per year (R200x12) at present
•
Increasing with earnings inflation until 31 July 2020 (i.e. 9 months
from the date
of the Industrial Psychologist's report)
• From
1 August 2020, an income of R129'000 per year (R10'750x12, in current
terms)
• Thereafter,
increasing in a straight line until reaching R403'300 per
year
(Paterson C1,
assumed median
guaranteed packages,
in April 2019
terms) at age 45
• Thereafter,
increasing with earnings inflation until retirement at age
62 ½.'
Having
regard to the accident
'Ms
Masango's income would be as follows:
• R2'400
per year (R200x12) at present
• Increasing
with earnings inflation until 31 July 2020 (i.e. 9 months
from the
date of the Industrial Psychologist's report)
• From
1 August 2020, an income of R129'000 per year (R10'750x12,
in current
terms)
• Thereafter,
increasing in a straight line until reaching R201'500
per year
average of Paterson B1/B2,
assumed
median guaranteed packages
, in April
2019 terms) at age
48½
• Thereafter,
increasing with earnings inflation until retirement at age
62 ½.'
[8]
I am mindful of the fact that the plaintiff completed Grade 12 in
2012.
In September 2014 she completed a 3 weeks security service
provider's course- Grade C Security Guard. Thereafter in March 2015
she underwent a 1-month basic training course and qualified
as
a
basic ambulance assistant on 4
March 2015. On 26 November 2015 she had completed her 1000 hours'
service on a voluntary basis and
was awaiting an opening for a
permanent paying position as a basic ambulance assistant.
[9]
On the day of the collision, 16 February 2016, she was on duty as a
volunteer
basic ambulance assistant at the back of the ambulance and
a vehicle collided with the ambulance. In essence she was never
gainfully
employed since she completed Grade 12 in 2012. She fell
pregnant around July 2017 giving birth In March 2018. Hence,
cognisance
must be made of the fact that she was not gainfully
employed from 2012 to 2018 some 6 years after she completed Grade 12.
In the
face of the aforesaid Mr Moodie still places her on a salary
level of R10 750 per month as at 26 November 2019 in the pre-accident
scenario.
[10]
It is also pointed out that during her voluntary period after she
completed her 1000 hours she was
also looking for work in the open
labour market. Interestingly enough, she stated that she again tried
to apply in the open labour
market from January 2019 this time in the
security sector so as to not put strain on her injuries. One of the
security companies
mentioned by the plaintiff to which she applied
was Mafuku Security.
[11]
It is noted that the calculation provided to the court only takes
cognisance of the plaintiff
pursuing a career as a basic ambulance
assistant and not as a security. In fact, I am mindful that Ms Van
der Walt, the occupational
therapist, states that having regard to
the accident she is still able to do the functions assigned to a
security officer. Whilst
Birrell, the orthopaedic, states she could
still function in her volunteer position as an ambulance assistant
and as a security
officer. The plaintiff ls thus employable in her
previous vocations chosen, at best as a security officer, having done
the course
and having sought such employment since January 2019.
[12] Now having
due regards to all the facts that I have mentioned above I am of the
view that a contingency
of 50% be applied, for both scenario's that
is past and future earnings. I believe Mr Moodie was overly generous
in the scenario
submitted to the actuary, in light of the fact that
the plaintiff was never gainfully employed before the collision.
[1]
[13]
On application of the 50% contingency the past and future loss is set
out below:
Future Income
Total
Income if accident did not occur
5 699 369.00
Less 50% contingency
2
849 684.50
Income given accident did occur
3 440 411.00
Less 50% contingency
1720205.50
Difference
1129 479.00
[14] In the result the plaintiff is
awarded general damages in the amount of R350 000.00, an undertaking
in terms of
section 17(4)
(a) of the
Road Accident Fund Act 56 of
1996
and loss of earnings in the amount of R1129 479.00. Thus, the
total amount
awarded is
R1479479.00.
[15]
Consequently, the following order is made:
[a]
The order marked 'X' is incorporated as
the order of this court.
W.
Hughes
Judge
of the High Court, Gauteng Division
[1]
A.A Mutual Insurance Association Ltd v Maqula 1978(1) SA 80S (A) at
81JA-H.